[Acct-Legal] Draft answers to Apr 17 memo

Mon Apr 20 23:15:57 UTC 2015

Robin,

I had real problems with the second sentence of 1.  Voluntary compliance is
not a form of enforceability, and the question asks about voluntary
compliance as opposed to enforceability.  In any case, if you're not
suggesting a further change, no need to discuss further.

How would you change the answer to question #4?  I'm not sure I understand
your comment.  I don't think we are seeking to change which budgets and
plans go before the Board; we're just seeking to change the community's
role in dealing with a budget or plan the community doesn't like.  As for
the contractual option for approving, counsel did not sound very hopeful
("might be enforceable," "might be very complex").  In any case, I don't
think that changes the answer to question 4, which requires an answer to a
postulate.

Also, is there are a change you would amke to #5?  Before hypothesizing
that unincorporated associations would be disregarded in other
jurisdictions, I think we would need a credibility check with our counsel.
I am no cross-border litigator, but I would think that principles of comity
(legal reciprocity among nations), among other things, would prevent or at
least deter such a result.  Of course, even if unincorporated associations
are disregarded, that is probably no worse than the current situation where
SOACs have no legal status whatsoever (unless one believes that ICANN is
protecting all of us from litigation).  Does the Legal Sub Team want to
assign these questions to counsel?

Greg

On Mon, Apr 20, 2015 at 6:11 PM, List for the work of CCWG-Accountability
Legal SubTeam <ccwg-accountability5 at icann.org> wrote:

> I liked the second sentence answer to 1a as originally drafted.   My only
> quibble is with the answer supplied to question 4.  It seems we have
> options about what budgets or plans can get *before* the board for the
> ultimate vote and we have options about contractual enforcement under the
> designator model that need further exploration.
>
> As for the answer to 5, I think anytime a new entity is created that
> people are participating in and that make decisions for which money is on
> the table, there is always going to be the concern for lawsuits.  If
> another country does not recognize unincorporated associations, for
> example, the individuals participating in those associations might instead
> be the target for whatever lawsuit gets filed about their decision/action
> (possibly in another jurisdiction).  While California law is a main
> concern, we need to recognize that other parts of the world may not share
> the protections in their legal code and so would try to reach right through
> the California association.
>
> Thanks,
> Robin
>
> On Apr 20, 2015, at 1:33 PM, List for the work of CCWG-Accountability
> Legal SubTeam wrote:
>
> Hi Leon,
>
> I offer the following comments:
>
> I suggest that the answers have a general lead-in sentence along these
> lines: We are submitting answers as requested but expect that further
> discussions in CCWG calls as well as work party and legal sub-team calls
> may further develop community concerns along these lines.
>
> With respect to the answer to 1.a) – I would stop after you’re the first
> sentence. I am concerned in the second sentence with the phrase “Whether
> this enforceability is voluntary compliance …” and think it best just to
> stop after first sentence. Voluntary compliance would not be an acceptable
> norm, in my opinion.
>
> With respect to the answer to 3.a) – I agree with the items listed in a)
> through d) – but there may be more, e.g. inaction by the board in certain
> circumstances, IRP decision as noted in the example in the question.
>
> With respect to the answer to 5) – I would suggest something along these
> lines: Most participants in the ICANN community are from countries other
> than the United States, and they (as well as many participants in the
> United States) are concerned with the reputation of the Unites States for
> unduly high levels of litigation. Our interest is in assuring participants
> that they will have the best protection from exposure to litigation in this
> regard, and nothing less than the community members have had to date.
>
> David McAuley
>
> *From:* ccwg-accountability5-bounces at icann.org [mailto:
> ccwg-accountability5-bounces at icann.org] *On Behalf Of *List for the work
> of CCWG-Accountability Legal SubTeam
> *Sent:* Monday, April 20, 2015 12:33 PM
> *To:* ccwg-accountability5 at icann.org
> *Subject:* [Acct-Legal] Draft answers to Apr 17 memo
>
> Dear all,
>
> I am attaching a very brief draft reply to the questions raised to us by
> the lawyers in their April 17 memo regarding the comparison chart on
> corporate models.
>
> I kindly ask you to review the draft and add any information you might
> consider relevant so we can have a final version by the end of today to
> submit to the lawyers.
>
> Please pay special attention to question 5 which has no answer in the
> draft.
>
>
> Thanks in advance,
>
>
> León Felipe Sánchez Ambía
> Fulton & Fulton SC
> http://www.fulton.mx
>
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>
>
> León
>
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