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Not quite Bruce.<br><br>
I know that for the ALAC, we will have the ability to remove whoever we
select if they do not act in accordance with the ALAC views.<br><br>
My question is whether the new "rules" can be set up so that by
nature of a person being named to the Chair or "Formal ICANN Honcho
(or whatever we specify), they can de facto (or with requisite paperwork)
be the ICANN Member(s).<br><br>
Alan<br><br>
At 26/05/2015 01:20 AM, Bruce Tonkin wrote:<br><br>
<blockquote type=cite class=cite cite="">Hello Alan,<br>
<br>
I think that individuals can certainly be members and exercise the right
of members.<br>
<br>
I think you are asking for information on what legal mechanisms can be
put in place to ensure that the member exercises they powers under
direction of the associated SO/AC, and not of their own
volition. Or put another way how is the member held
accountable to the appointing organization?<br>
<br>
Regards,<br>
Bruce Tonkin<br>
<br>
<br>
<b>From:</b> accountability-cross-community-bounces@icann.org
[<a href="mailto:accountability-cross-community-bounces@icann.org" eudora="autourl">
mailto:accountability-cross-community-bounces@icann.org</a>] <b>On Behalf
Of </b>Alan Greenberg<br>
<b>Sent:</b> Monday, 25 May 2015 11:16 AM<br>
<b>To:</b> León Felipe Sánchez AmbÃa; Kavouss Arasteh<br>
<b>Cc:</b> accountability-cross-community@icann.org<br>
<b>Subject:</b> Re: [CCWG-ACCT] pending legal questions<br>
<br>
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<br><br>
At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa
wrote:<br><br>
<dl>
<dd>Dear Kavouss,<br><br>
<dd>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>
<dd>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>
<dd>I hope you find this information useful. Please let me know if you
need further clarification.<br><br>
<br>
<dd>Best regards,<br><br>
<br>
<dd>León<br><br>
<br>
<dl>
<dd>El 24/05/2015, a las 2:29, Kavouss Arasteh
<<a href="mailto:kavouss.arasteh@gmail.com">
kavouss.arasteh@gmail.com</a>> escribió:<br><br>
<dd>Dear Leon<br>
<dd>I have asked few questions for which no reply are yet
provided?!<br>
<dd>Now , since last week , extensive discussions are on going on whether
a membership approach is implementable without a need to UA?<br>
<dd>May you raise this issue to the legal council pls<br>
<dd>Regards<br>
<dd>Kavouss<br>
<dd> <br><br>
<dd>Sent from my iPhone<br><br>
<dd>On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa
<<a href="mailto:leonfelipe@sanchez.mx">leonfelipe@sanchez.mx</a>>
wrote:<br><br>
<br>
<dl>
<dd>Dear Jorge,<br><br>
<dd>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>
<dd>I hope you find this information useful.<br><br>
<br>
<dd>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 ICANNâs s
structure? What extra accountability would changing jurisdiction bring to
the community?<br>
</b><br>
<dd>1.</b> Addressing jurisdiction in articles and bylaws and
whether possible under ICANNâs structure:</b>/b> Under
concepts of state corporate law in the US, the entityâs articles of
incorporation set forth th the jurisdiction under which a corporation is
formed </i></b>. The laws of the jurisdiction of formation
(currently for ICANN, California) govern the internal affairs of the
corporation (the </i></b>â ininternal affairs doctrineâ)
</i></b>. Thehese 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. 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,
</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 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>
<dd> <br>
</i></b>
<dd>To the extent that this question </i></b>is intended to relate to
establishing a commitment to review where ICANN should be incorporated in
the future, we need more information about what is sought to be
accomplished </i></b>and the opportunity to undertake specific
research. <br>
<dd> <br>
</i></b>
<dd>To the extent that this question is about locking in a jurisdiction
for formation or for dispute resolution or other purposes such that it is
very difficult to change in the future, we </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>
<dd>2. Extra accountability mechanisms in other
jurisdictions:</b> As to whether extra accountability mechanisms
are available in other jurisdictions, we would have to engage in research
</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 undertake research on this question it would be helpful
to better understand the underlying concern that is driving this
question. <br>
<br>
<dd>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>
<dd> <br>
<dd>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, theese 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>
<dd> <br>
<dd>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 âmanaging boardâ (but this may 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>
<dd>Best regards,<br><br>
<br>
<dd>León<br><br>
<br>
<dl>
<dd>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>
<dd>Dear Co-Chairs, dear all<br><br>
<br>
<dd>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>
<dd>All questions were refered to and posed during the CCWG call of March
31st:<br><br>
<dd>==<br><br>
<dd>- 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>
<dd>- 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>
<dd>- 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>
<dd>==<br><br>
<dd>The references to legal memos in those questions should be understood
as refering to the papers current on March 31st.<br><br>
<dd>Thank you very much for your assistance and best regards<br><br>
<br><br>
<dd>Jorge Cancio<br>
<dd>Switzerland<br><br>
<dd>Von meinem iPhone gesendet<br><br>
</dl><br>
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