<div dir="ltr"><div>Dear Leon</div><div>Dear other Co-chairs</div><div>Dear Colleagues</div><div>From the e-mail discussions, I recognized that the matter of Member Model with or without UA and various options to do so is still unclear for many</div><div>When therre are more than 150 e-m,ailé exchanged in which the issue was addressed from various angle</div><div>It means that there are issues to be addressed</div><div>May I respectfully suggest that include the matter in today's agenda</div><div>Kavouss </div></div><div class="gmail_extra"><br><div class="gmail_quote">2015-05-26 8:37 GMT+02:00 Barrack Otieno <span dir="ltr"><<a href="mailto:otieno.barrack@gmail.com" target="_blank">otieno.barrack@gmail.com</a>></span>:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">I think it is always best to institutionalize membership that way by<br>
laws have room to operate since we are dealing with an entity as<br>
opposed to when the same is personalized which allows room for<br>
feelings to operate.<br>
<span><br>
On 5/26/15, Seun Ojedeji <<a href="mailto:seun.ojedeji@gmail.com">seun.ojedeji@gmail.com</a>> wrote:<br>
> On Tue, May 26, 2015 at 6:20 AM, Bruce Tonkin <<br>
> <a href="mailto:Bruce.Tonkin@melbourneit.com.au">Bruce.Tonkin@melbourneit.com.au</a>> wrote:<br>
><br>
>> ...... Or put another way – how is the member held accountable to the<br>
>> appointing organization?<br>
>><br>
><br>
> Good question, another question from me is "whether the membership can be<br>
> tied to the position and not the person". i.e Is it possible to recognise<br>
> the Chair of SO/AC as the members? if yes, i think that would make whatever<br>
> accountability mechanism within the SO/AC applicable on their member<br>
> representative; Like the various SO/AC would be able to replace their Chair<br>
> (as they would have normally done) if they find him/her no longer operating<br>
> by their guidelines<br>
><br>
> Regards<br>
><br>
>><br>
>><br>
>> Regards,<br>
>><br>
>> Bruce Tonkin<br>
>><br>
>><br>
>><br>
>><br>
>><br>
</span>>> *From:* <a href="mailto:accountability-cross-community-bounces@icann.org">accountability-cross-community-bounces@icann.org</a> [mailto:<br>
>> <a href="mailto:accountability-cross-community-bounces@icann.org">accountability-cross-community-bounces@icann.org</a>] *On Behalf Of *Alan<br>
>> Greenberg<br>
>> *Sent:* Monday, 25 May 2015 11:16 AM<br>
>> *To:* León Felipe Sánchez AmbÃa; Kavouss Arasteh<br>
>> *Cc:* <a href="mailto:accountability-cross-community@icann.org">accountability-cross-community@icann.org</a><br>
>> *Subject:* Re: [CCWG-ACCT] pending legal questions<br>
<div><div class="h5">>><br>
>><br>
>><br>
>> Leon, at least from my point of view, I think the question is a bit more<br>
>> specific. We of course know that individuals have a legal persona and<br>
>> therefore could be Members (or Designators).<br>
>><br>
>> The question is whether it is practical to structure things so that the<br>
>> SO/AC Chairs (or other individuals named by their office within the ICANN<br>
>> community (perhaps a Chair of a SG in the case of the GNSO) can be<br>
>> identified as Members and whoever the incumbent is in the office plays<br>
>> that<br>
>> role. Or if that is not possible, is there an easy easy to designate<br>
>> them<br>
>> (no pun intended) as Designators or Members when they assume office. And<br>
>> if<br>
>> some peron is playing that role, can they appoint someone else to act in<br>
>> that capacity in place of them.<br>
>><br>
>> Alan<br>
>><br>
>> At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote:<br>
>><br>
>> Dear Kavouss,<br>
>><br>
>> Thanks for your questions. At this stage, the advice from lawyers is that<br>
>> membership approach can be implementable in many ways. One being the<br>
>> establishment of UA but also any other kind of legal vehicle. The example<br>
>> mentioned has been a non-profit organization. I stress that this has just<br>
>> been used as an example and no one has suggested this approach as it has<br>
>> only been used to illustrate which other legal vehicles could be used to<br>
>> become a member.<br>
>><br>
>> The bottom line is that to exercise certain powers as Board member<br>
>> removal<br>
>> and budget approval, there would be the need to have a legal vehicle<br>
>> (whatever legal vehicle) to implement the proposal.<br>
>><br>
>> I hope you find this information useful. Please let me know if you need<br>
>> further clarification.<br>
>><br>
>><br>
>> Best regards,<br>
>><br>
>><br>
>> León<br>
>><br>
>><br>
>> El 24/05/2015, a las 2:29, Kavouss Arasteh < <a href="mailto:kavouss.arasteh@gmail.com">kavouss.arasteh@gmail.com</a>><br>
>> escribió:<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<br>
>> 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>
>> On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa <<br>
>> <a href="mailto:leonfelipe@sanchez.mx">leonfelipe@sanchez.mx</a>> wrote:<br>
>><br>
>><br>
>> Dear Jorge,<br>
>><br>
>> Apologies for the delayed reply. On April 1st, Sidley answered these<br>
>> questions on the Lega Sub-team list. I apologize for having missed them<br>
>> and<br>
>> not forwarding them to you.<br>
>><br>
>> I hope you find this information useful.<br>
>><br>
>><br>
>><br>
</div></div>>> *A. Jurisdiction: What provisions, if any, can be included in the<br>
<span>>> Bylaws or articles of incorporation related to jurisdiction issues? Is<br>
>> that<br>
>> possible under current ICANN’s structure? What extra accountability<br>
>> would<br>
</span>>> changing jurisdiction bring to the community? *<br>
>> *1.* *Addressing jurisdiction in articles and bylaws and whether<br>
>> possible under ICANN’s structure:* Under concepts of state corporate<br>
<div><div class="h5">>> law in the US, the entity’s articles of incorporation set forth the<br>
>> jurisdiction under which a corporation is formed . The laws of the<br>
>> jurisdiction of formation (currently for ICANN, California) govern the<br>
>> internal affairs of the corporation (the “ internal affairs doctrine“)<br>
>> .<br>
>> These internal affairs include issues that one would expect to see<br>
>> expressed in bylaws such as how the entity is organized internally and<br>
>> the<br>
>> various roles and decision rights and responsibilities of key<br>
>> participants: members or designators (if any), directors and officers,<br>
>> and<br>
>> other key constituents. Generally the corporation has to have s a<br>
>> "registered office" in the state of incorporation but it may have its<br>
>> primary office in another jurisdiction. There is also flexibility to<br>
>> provide for alternate dispute resolutions and to designate specific<br>
>> choice<br>
>> of law provisions for such dispute resolution. For example, the bylaws<br>
>> can set up alternative dispute resolution processes subject to binding<br>
>> international arbitration that follows bespoke rules formulated and<br>
>> agreed<br>
>> to by the community in the bylaws and other core documents. Although<br>
>> this<br>
>> does not fully allow the community to establish a comprehensive and<br>
>> binding<br>
>> private international law, and some court challenges will remain possible<br>
>> for entities organized under the laws of any jurisdiction, this would<br>
>> allow<br>
>> for the resolution of most disputes in a manner consistent with the legal<br>
>> norms of the multi-stakeholder community, as has long been the case with<br>
>> respect to domain name disputes. Outside of bylaw provisions,<br>
>> contracting<br>
>> parties typically specify what law shall govern specific contractual<br>
>> arrangements and provide forspecific mechanisms to apply for dispute<br>
>> resolution. For example CA law need not be the law chosen to rule a<br>
>> particular contractual relation. And contracts with third parties can<br>
>> define alternate jurisdictions and mechanisms to resolve legal<br>
>> disagreements.<br>
>><br>
>> To the extent that this question is intended to relate to establishing<br>
>> a commitment to review where ICANN should be incorporated in the future,<br>
>> we<br>
>> need more information about what is sought to be accomplished and the<br>
>> opportunity to undertake specific research.<br>
>><br>
>> To the extent that this question is about locking in a jurisdiction for<br>
>> formation or for dispute resolution or other purposes such that it is<br>
>> very<br>
>> difficult to change in the future, we would need to undertake research<br>
>> and also explore the pros and cons of such an approach and how it might<br>
>> be<br>
>> effectuated for example through a very high threshold for amendment or<br>
>> golden bylaw.<br>
>><br>
</div></div>>> *2. Extra accountability mechanisms in other jurisdictions:* As to<br>
<span>>> whether extra accountability mechanisms are available in other<br>
>> jurisdictions, we would have to engage in research and it would be<br>
>> helpful to have direction as to several jurisdictions of interest rather<br>
>> than canvas the entire set of possibilities. We are not aware without<br>
>> further research of a jurisdiction that offers extra accountability<br>
>> mechanisms that could not be created in the flexible framework provided<br>
>> by<br>
>> state corporate law in the US Before we undertake research on this<br>
>> question<br>
>> it would be helpful to better understand the underlying concern that is<br>
>> driving this question.<br>
>><br>
>><br>
>><br>
</span>>> *B. Liability: Which would be the liability of those persons conforming<br>
<span>>> the proposed bodies? (IRP, Supervisory Board) Has the figure of a<br>
>> supervisory board has been put in practice in California? 1. Liability<br>
</span>>> of persons participating on proposed bodies:* While directors and<br>
<span>>> officers of a corporation take on certain responsibilities and<br>
>> liabilities<br>
>> as fiduciaries, it is relatively rare for a director or officer of a<br>
>> non-profit corporation to be found liable for breach of duty absent<br>
>> malfeasance – for exxample engaging in self-dealing. In addition, the<br>
>> corporation generally can exculpate (hold harmless) and indemnify<br>
>> (promise<br>
>> to pay for a financial liability outcome) so long as the act was not<br>
>> criminal or a breach of the duty of loyalty (self-dealing) or otherwise<br>
>> in<br>
>> bad faith. As to other persons – for examples members of a review panel,<br>
>> these same prootections of exculpation and indemnification are available.<br>
>> Generally there are a variety of protections available to help protect<br>
>> persons involved in ICANN governance from personal liability.<br>
>><br>
</span>>> * 2. Supervisory boards:* A two tier board structure – with of a<br>
<div><div class="h5">>> supervisoory board and a management board is generally not a specific<br>
>> legal<br>
>> construct under state corporate law in the US. State corporate law<br>
>> generally contemplates that the board of directors has authority to<br>
>> manage<br>
>> and direct the affairs of the corporation and that the board typically<br>
>> delegates management functions to a group of officers. Those officers<br>
>> are<br>
>> not typically organized into a “managing board†(but this may be a<br>
>> difference without much specific legal import). Additionally, a board<br>
>> can<br>
>> delegate to a board committee in ways that can mimic some aspects of the<br>
>> distinction between a supervisory board and a management board , although<br>
>> if that board committee takes on management tasks there is some risk that<br>
>> its members could be viewed to take on the heightened legal<br>
>> responsibilities and liabilities associated with corporate officers.<br>
>> Best regards,<br>
>><br>
>><br>
>> León<br>
>><br>
>><br>
>> El 23/05/2015, a las 1:22, <a href="mailto:Jorge.Cancio@bakom.admin.ch">Jorge.Cancio@bakom.admin.ch</a> escribió:<br>
>><br>
>> Dear Co-Chairs, dear all<br>
>><br>
>><br>
>> I would like to kindly request information on the status of processing<br>
>> the<br>
>> following legal questions, as I was informed more than a month ago that<br>
>> an<br>
>> 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<br>
>> 31st:<br>
>><br>
>> ==<br>
>><br>
>> - On jurisdiction I'd like to remind that there is a question which as I<br>
>> understand will be posed to our legal advisors on common practice<br>
>> regarding<br>
>> provisions included usually, if any, on jurisdiction issues in Bylaws and<br>
>> Articles of Incorporation (and the current situation in the case of<br>
>> ICANN)?<br>
>><br>
>> - question of possible liabilities of future "community council" members<br>
>> -for exercising its powers- has been or will be considered. A question<br>
>> which arises from the paper is that the more power you give to actors<br>
>> different to the board, the more it is likely that they become liable in<br>
>> some fashion - this should be further investigated.<br>
>><br>
>> - it seems in both papers (Sidley and Adler) that there would be some<br>
>> difficulties in finding solutions for independent and binding appeals<br>
>> 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<br>
>> 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<br>
>><br>
>><br>
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>><br>
><br>
><br>
> --<br>
> ------------------------------------------------------------------------<br>
><br>
><br>
><br>
><br>
><br>
</div></div>> *Seun Ojedeji,Federal University Oye-Ekitiweb: <a href="http://www.fuoye.edu.ng" target="_blank">http://www.fuoye.edu.ng</a><br>
> <<a href="http://www.fuoye.edu.ng" target="_blank">http://www.fuoye.edu.ng</a>> Mobile: <a href="tel:%2B2348035233535" value="+2348035233535">+2348035233535</a>**alt email:<br>
> <<a href="http://goog_1872880453" target="_blank">http://goog_1872880453</a>><a href="mailto:seun.ojedeji@fuoye.edu.ng">seun.ojedeji@fuoye.edu.ng</a><br>
> <<a href="mailto:seun.ojedeji@fuoye.edu.ng">seun.ojedeji@fuoye.edu.ng</a>>*<br>
<span class="im HOEnZb">><br>
> The key to understanding is humility - my view !<br>
><br>
<br>
<br>
</span><span class="HOEnZb"><font color="#888888">--<br>
Barrack O. Otieno<br>
<a href="tel:%2B254721325277" value="+254721325277">+254721325277</a><br>
<a href="tel:%2B254-20-2498789" value="+254202498789">+254-20-2498789</a><br>
Skype: barrack.otieno<br>
<a href="http://www.otienobarrack.me.ke/" target="_blank">http://www.otienobarrack.me.ke/</a><br>
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