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

Thu Apr 9 17:00:19 UTC 2015

I support this approach and look forward to better understanding both the empowered designator model and a true membership model.  

I expect we will end up with a tapestry of recommendations rather than a single mechanism that meets all of our needs, but sorting out the structural model question would be a big step forward.

Thanks much!
Robin

On Apr 9, 2015, at 9:49 AM, Edward Morris wrote:

> 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
> Direct  212-885-9253 | Main 212-949-9022
> Fax  212-949-9190 | Cell 917-816-6428
> gsshatan at lawabel.com
> ICANN-related: gregshatanipc at gmail.com
> 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/>/*
> >
> >
> >
> >
> >
> > _______________________________________________
> > Ccwg-accountability5 mailing list
> > Ccwg-accountability5 at icann.org
> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5
> >
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