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

Thu Apr 9 16:49:00 UTC 2015

Hi Greg and David,

Thank you both for doing such great work. I fully support David's
suggestion.

Best,

Ed

On Thu, Apr 9, 2015 at 3:49 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:

> I also support David's suggestion on process.  Holly is on a plane right
> now.  It would be good to be able to give her the green light on this
> suggestion when she lands in a couple of hours.  Please respond with
> agreement.  More importantly, pleeeeeease respond if you disagree.  At some
> point, silence must be taken as consent, in this instance.
>
> Greg
>
> *Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
>
> *Partner* *| IP | Technology | Media | Internet*
>
> *666 Third Avenue | New York, NY 10017-5621*
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>
> *gsshatan at lawabel.com <gsshatan at lawabel.com>*
>
> *ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com>*
>
> *www.lawabel.com <http://www.lawabel.com/>*
>
> On Thu, Apr 9, 2015 at 9:18 AM, Athina Fragkouli <
> athina.fragkouli at ripe.net> wrote:
>
>> Hello,
>>
>> Many thanks to Greg for following up with the questions.
>>
>> I agree with David's approach and I support his suggestion.
>>
>> Athina
>>
>>
>> On 09/04/15 14:34, McAuley, David wrote:
>> > 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 **ï** **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>
>> >
>> >
>> >
>> >
>> >
>> >
>> >
>> > _______________________________________________
>> > Accountability-Cross-Community mailing list
>> > Accountability-Cross-Community at icann.org
>> > <mailto:Accountability-Cross-Community at icann.org>
>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
>> >
>> >
>> >
>> >
>> >
>> > --
>> >
>> > *Gregory S. Shatan **ï** **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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>> > Ccwg-accountability5 at icann.org
>> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5
>> >
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