[Acct-Legal] Memorandum of Request for Legal Advice: Questions from Pedro Ivo Ferraz da Silva

Thu Apr 9 12:34:28 UTC 2015

Thank you Greg for passing questions along and ensuring that we keep track as they come in. I think Leon has already started work on a compilation of questions to lodge in a central place and this will help him in that effort when he returns.

I write now to suggest that the legal sub-team give our outside counsel some prioritization to work and questions for the period from now through Monday, prior to the next CCWG call.

My suggestion is that we ask them to now formulate an initial “holistic” advice to the CCWG (taking into account WPs focus as well) on what counsel suggest as the best way forward with respect to the entire series of Work Stream One topics. Perhaps, now that the ARIN memo is on the table, a balance between membership and designator models would be appropriate as well, comparing and contrasting them in the context of what we need to achieve for WS1.

By now, Sidley and Adler have heard/seen enough to have an appreciation for what we are attempting to achieve vis-à-vis ICANN accountability and seem prepared to render at least initial advice for this critical stage as we work to get a draft proposal out April 21. Obviously the work will continue beyond that and the list of questions will be there for attention as appropriate.

I think this is consistent with what Holly Gregory noted at the close of the WP1 call last evening (21:00 to 23:00 UTC). I believe she said they would look at the templates WP1 asked about and put a cover memo on it – think she was referring to a generalized “holistic” cover note.

So I suggest that Holly, as the coordinating counsel between Sidley/Austin and Adler/Colvin, partition the work involved as she best determines to take account of required expertise and to maintain that duplicate efforts/costs are not incurred – and deliver an initial overall advice that would help the CCWG better, perhaps (IMO), than would a series of answers to a series of questions.
I think this then will give us time as the sub-team to react and ask follow-ups and may be the best way to get in shape for CCWG work April 20-21.

IMO, we still need to compile all the questions posed from us and the community so we do not lose sight of them for further work - and these questions may better help the firms understand where we are coming from as another insight into context.

As one member of the team I cannot give direction, but hope the suggestion may help us.

David McAuley

From: ccwg-accountability5-bounces at icann.org [mailto:ccwg-accountability5-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Thursday, April 09, 2015 1:13 AM
To: ccwg-accountability5 at icann.org
Subject: [Acct-Legal] Memorandum of Request for Legal Advice: Questions from Pedro Ivo Ferraz da Silva

Counsel:

As discussed today on the Legal Sub Team call, this is a formal authorization to review and respond to the questions set forth below from  Pedro Ivo Ferraz da Silva.

Please let the Legal Sub Team know if you have any questions.

Best regards,

Greg

Gregory S. Shatan • Abelman Frayne & Schwab

Partner | IP | Technology | Media | Internet

666 Third Avenue | New York, NY 10017-5621

Direct  212-885-9253<tel:212-885-9253> | Main 212-949-9022<tel:212-949-9022>

Fax  212-949-9190<tel:212-949-9190> | Cell 917-816-6428<tel:917-816-6428>

gsshatan at lawabel.com<mailto:gsshatan at lawabel.com>

ICANN-related: gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>

www.lawabel.com<http://www.lawabel.com/>

---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Tue, Apr 7, 2015 at 11:44 AM
Subject: Fwd: [CCWG-ACCT] Accountability questions to law firms
To: "ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>" <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>>

Legal Subteam and Counsel:

I am forwarding this email and the two following in this thread to the Legal Subteam for consideration as an assignment/instruction to counsel

Greg Shatan
---------- Forwarded message ----------
From: Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br<mailto:pedro.ivo at itamaraty.gov.br>>
Date: Tue, Apr 7, 2015 at 10:41 AM
Subject: [CCWG-ACCT] Accountability questions to law firms
To: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>

Dear CCWG-colleagues,

Please find below a group of questions to be posed to the law firms assisting the CCWG-Accountability.

•         Are there any restrictions in California law  or in applicable federal US-law with respect to government officials (US or foreign) becoming statutory members (or designators) of a non-profit organization? Would all liabilities applied to US or foreign citizens in a membership (or designator) structure  equally apply to a government official which has legal immunity and privileges in the United States?

•         What are the specific legal requirements for a third-party which may have approval or veto rights over board decisions and what are its liabilities?

•         A community veto  (be it exercised in a membership or a designator structure) over a bylaw change could be potentially reverted through a court decision in California? Same question applies to a decision made by an Independent Appeals Panel mechanism.

•         The fact that the "board bears ultimate responsibility for corporate decisions and must provide oversight of the exercise of those powers it has delegated" (Sidley Austin LLP, Initial Discussion Draft 1, p. 3) implies that the board may eventually revert a community veto (member or designator structure) over its own decision or over the budget it has originally approved?

•         Is the Californian Attorney General able to intervene in ICANN's operations upon the complaint of a government (US or other)? How does this situation relate to norms of international private law internalized by the United States?

Thanks in advance,

Secretário
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609<tel:%2B%2055%2061%202030-6609>

Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609<tel:%2B%2055%2061%202030-6609>

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--

Gregory S. Shatan • Abelman Frayne & Schwab

Partner | IP | Technology | Media | Internet

666 Third Avenue | New York, NY 10017-5621

Direct  212-885-9253<tel:212-885-9253> | Main 212-949-9022<tel:212-949-9022>

Fax  212-949-9190<tel:212-949-9190> | Cell 917-816-6428<tel:917-816-6428>

gsshatan at lawabel.com<mailto:gsshatan at lawabel.com>

ICANN-related: gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>

www.lawabel.com<http://www.lawabel.com/>

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