<div dir="ltr"><div class="gmail_default" style="font-family:verdana,sans-serif">It's a fair question to ask, regardless of whether one is an advocate for the idea: can we find a way for "natural persons" to be the members of ICANN, yet clearly only as "alter egos" to the SO/ACs and not in their own capacity? To my mind, the "natural person" would need to be expressly and solely serving in his or her capacity as a representative of the SO/AC by virtue of their position so that the "real" member was the SO/AC: e.g., "GNSO, by its chair Jonathan Robinson" That linkage needs to be explicitly and firmly established -- the idea that the community leaders would be the members seems a little odd.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Clearly, membership meetings would not be freewheeling affairs, since the sole ability of the members-in-fact should be transmitting already decided positions of the SO/ACs. As such, any give and take regarding positions and concerns would need to take place within the community prior to a members meeting, rather than at a members meeting.</div></div><div class="gmail_extra"><br><div class="gmail_quote">On Sun, May 24, 2015 at 9:15 PM, Alan Greenberg <span dir="ltr"><<a href="mailto:alan.greenberg@mcgill.ca" target="_blank">alan.greenberg@mcgill.ca</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div>
Leon, at least from my point of view, I think the question is a bit more
specific. We of course know that individuals have a legal persona and
therefore could be Members (or Designators).<br><br>
The question is whether it is practical to structure things so that the
SO/AC Chairs (or other individuals named by their office within the ICANN
community (perhaps a Chair of a SG in the case of the GNSO) can be
identified as Members and whoever the incumbent is in the office plays
that role. Or if that is not possible, is there an easy easy to
designate them (no pun intended) as Designators or Members when
they assume office. And if some peron is playing that role, can they
appoint someone else to act in that capacity in place of them.<br><br>
Alan<span class=""><br><br>
At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote:<br>
</span><blockquote type="cite"><span class="">Dear Kavouss,<br><br>
Thanks for your questions. At this stage, the advice from lawyers is that
membership approach can be implementable in many ways. One being the
establishment of UA but also any other kind of legal vehicle. The example
mentioned has been a non-profit organization. I stress that this has just
been used as an example and no one has suggested this approach as it has
only been used to illustrate which other legal vehicles could be used to
become a member.<br><br>
The bottom line is that to exercise certain powers as Board member
removal and budget approval, there would be the need to have a legal
vehicle (whatever legal vehicle) to implement the proposal.<br><br>
I hope you find this information useful. Please let me know if you need
further clarification.<br><br>
<br>
Best regards,<br><br>
<br></span>
León<br><br>
<blockquote type="cite">El 24/05/2015, a las 2:29,
Kavouss Arasteh
<<a href="mailto:kavouss.arasteh@gmail.com" target="_blank">
kavouss.arasteh@gmail.com</a>> escribió:<span class=""><br><br>
Dear Leon<br>
I have asked few questions for which no reply are yet
provided?!<br>
Now , since last week , extensive discussions are on going on whether a
membership approach is implementable without a need to UA?<br>
May you raise this issue to the legal council pls<br>
Regards<br>
Kavouss<br>
<br><br>
Sent from my iPhone<br><br></span><span class="">
On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa
<<a href="mailto:leonfelipe@sanchez.mx" target="_blank">leonfelipe@sanchez.mx</a>>
wrote:<br><br>
</span><blockquote type="cite"><span class="">Dear Jorge,<br><br>
Apologies for the delayed reply. On April 1st, Sidley answered these
questions on the Lega Sub-team list. I apologize for having missed them
and not forwarding them to you.<br><br>
I hope you find this information useful.<br><br>
<br>
</span><b>A. Jurisdiction: What provisions, if any, can be
included in the Bylaws or articles of incorporation related to
jurisdiction issues? Is that possible under current ICANN’s structure?
What extra accountability would changing jurisdiction bring to the
community?<br>
</b><br>
<b>1.</b> <b>Addressing jurisdiction in articles and bylaws and
whether possible under ICANN’s structure:</b> Under concepts of
state corporate law in the US, the entity’s articles of incorporation
set forth the jurisdiction under which a corporation is formed<b><i>
</i></b>. The laws of the jurisdiction of formation (currently for
ICANN, California) govern the internal affairs of the corporation
(the<b><i> </i></b>“ internal affairs doctrine“)<b><i>
</i></b>. These internal affairs include issues that one would
expect to see expressed in bylaws such as how the entity is
organized internally and the various roles and decision rights and
responsibilities of key participants: members or designators (if
any), directors and officers, and other key constituents. <b><i>
</i></b>Generally the corporation has to have s a "registered
office" in the state of incorporation but it may have its
primary office in another jurisdiction. There is also
flexibility to provide for alternate dispute resolutions and to designate
specific choice of law provisions for such dispute resolution. For
example, <b><i> </i></b>the bylaws can set up alternative dispute
resolution processes subject to binding international arbitration that
follows bespoke rules formulated and agreed to by the community in the
bylaws and other core documents. Although this does not fully allow
the community to establish a comprehensive and binding private
international law, and some court challenges will remain possible for
entities organized under the laws of any jurisdiction, this would allow
for the resolution of most disputes in a manner consistent with the legal
norms of the multi-stakeholder community, as has long been the case with
respect to domain name disputes. Outside of bylaw provisions,
contracting parties typically specify what law shall govern specific
contractual arrangements and <b><i> </i></b>provide forspecific
mechanisms to apply for dispute resolution. For example CA law need
not be the law chosen to rule a particular contractual relation.
And contracts with third parties can define alternate jurisdictions and
mechanisms to resolve legal disagreements. <br><span class="">
<b><i> <br>
</i></b>To the extent that this question<b><i> </i></b>is intended to
relate to <b><i> </i></b>establishing a commitment to review where ICANN
should be incorporated in the future, we need more information about what
is sought to be accomplished<b><i> </i></b> and the opportunity to
undertake specific research. <br>
<b><i> <br>
</i></b>To the extent that this question is about locking in a
jurisdiction <b><i> </i></b>for formation or for dispute resolution or
other purposes such that it is very difficult to change in the future,
we<b><i> </i></b>would need to undertake research and also explore the
pros and cons of such an approach and how it might be effectuated for
example through a very high threshold for amendment or golden
bylaw. <br>
<br>
<b>2. <i> </i>Extra accountability mechanisms in other
jurisdictions:</b> As to <b><i> </i></b>whether extra
accountability mechanisms <b><i> </i></b>are available in other
jurisdictions, we would have to engage in research<b><i> </i></b> and it
would be helpful to have direction as to several jurisdictions of
interest rather than canvas the entire set of possibilities. We are
not aware without further research of a jurisdiction that offers extra
accountability mechanisms that could not be created in the flexible
framework provided by state corporate law in the US Before we <b><i>
</i></b>undertake research on this question it would be helpful to better
understand the underlying concern that is driving this question.
<br><br>
</span><b><span class="">B. Liability: Which would be the liability of those persons
conforming the proposed bodies? (IRP, Supervisory Board) Has the figure
of a supervisory board has been put in practice in California?<br>
<br></span>
1. Liability of persons participating on proposed
bodies:</b> While directors and officers of a corporation
take on certain responsibilities and liabilities as fiduciaries, it is
relatively rare for a director or officer of a non-profit corporation to
be found liable for breach of duty absent malfeasance – for exxample
engaging in self-dealing. In addition, the corporation generally
can exculpate (hold harmless) and indemnify (promise to pay for a
financial liability outcome) so long as the act was not criminal or a
breach of the duty of loyalty (self-dealing) or otherwise in bad
faith. As to other persons – for examples members of a review
panel, these same prootections of exculpation and indemnification are
available. Generally there are a variety of protections available
to help protect persons involved in ICANN governance from personal
liability. <br>
<b> <br>
2. Supervisory boards:</b> A two tier board structure –
with of a supervisoory board and a management board is generally not a
specific legal construct under state corporate law in the US. State
corporate law generally contemplates that the board of directors has
authority to manage and direct the affairs of the corporation and that
the board typically delegates management functions to a group of
officers. Those officers are not typically organized into a
“managing board†(but this may be a difference without much specific
legal import). Additionally, a board can delegate to a
board committee in ways that can mimic some aspects of the distinction
between a supervisory board and a management board , although if that
board committee takes on management tasks there is some risk that its
members could be viewed to take on the heightened legal responsibilities
and liabilities associated with corporate officers. <br>
Best regards,<br><br>
<br>
León<br><br>
<blockquote type="cite">El 23/05/2015, a las 1:22,
<a href="mailto:Jorge.Cancio@bakom.admin.ch" target="_blank">
Jorge.Cancio@bakom.admin.ch</a> escribió:<span class=""><br><br>
Dear Co-Chairs, dear all<br><br>
<br>
I would like to kindly request information on the status of processing
the following legal questions, as I was informed more than a month ago
that an answer was being prepared, but still I have not seen any specific
reply.<br><br>
All questions were refered to and posed during the CCWG call of March
31st:<br><br>
==<br><br>
- On jurisdiction I'd like to remind that there is a question which as I
understand will be posed to our legal advisors on common practice
regarding provisions included usually, if any, on jurisdiction issues in
Bylaws and Articles of Incorporation (and the current situation in the
case of ICANN)? <br><br>
- question of possible liabilities of future "community
council" members -for exercising its powers- has been or will be
considered. A question which arises from the paper is that the more power
you give to actors different to the board, the more it is likely that
they become liable in some fashion - this should be further
investigated.<br><br>
- it seems in both papers (Sidley and Adler) that there would be some
difficulties in finding solutions for independent and binding appeals
panels - I guess this will need to be explored in depth<br><br>
==<br><br>
The references to legal memos in those questions should be understood as
refering to the papers current on March 31st.<br><br>
Thank you very much for your assistance and best regards<br><br>
<br><br>
Jorge Cancio<br>
Switzerland<br><br>
Von meinem iPhone gesendet</span></blockquote><span class=""><br>
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