[Acct-Legal] Fwd: Draft answers to Apr 17 memo

Tue Apr 21 02:27:26 UTC 2015

Forwarding Jordan's email to the Legal Sub Team list.

Greg
---------- Forwarded message ----------
From: Jordan Carter <jordan at internetnz.net.nz>
Date: Mon, Apr 20, 2015 at 10:26 PM
Subject: Fwd: [Acct-Legal] Draft answers to Apr 17 memo
To: Robin Gross <robin at ipjustice.org>, Greg Shatan <gregshatanipc at gmail.com>,
León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>
Cc: ACCT-Staff <acct-staff at icann.org>, Mathieu Weill <Mathieu.Weill at afnic.fr>,
Thomas Rickert <rickert at anwaelte.de>, Becky Burr <Becky.Burr at neustar.biz>,
stevedelbianco <sdelbianco at netchoice.org>

Please see my correspondence below. I got a bounce from the list.

Jordan

---------- Forwarded message ----------
From: Jordan Carter <jordan at internetnz.net.nz>
Date: 21 April 2015 at 12:10
Subject: Re: [Acct-Legal] Draft answers to Apr 17 memo
To: "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>

Hi all

I don't know if this will get through.

I have carefully calibrated the powers in WP1 to be something in between a
decision point and a reconsideration. I think they're best thought of as
reconsideration-with-block.

The intention of taking this approach on my part has been to leave the
Board as the decision-maker, but the power with the Community to reject its
proposed approaches and to send matters back to the Board for
reconsideration.

Unlike a normal reconsideration process though, the lack of limits on the
number of times this can happen and the (I hope) clear statement that the
bylaws change, or budget or strategic plan, cannot progress or be
implemented while it is being reconsidered, clearly allocates the
responsibility for making workable decisions with the Board, but empowers
the community in a suitable way.

If  we try to give the community mechanism the formal decision rights, I
think we are asking for trouble.

I hope this helps.

cheers
Jordan

On 21 April 2015 at 11:15, List for the work of CCWG-Accountability Legal
SubTeam <ccwg-accountability5 at icann.org> wrote:

> 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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>>
>>
>> Best regards,
>>
>>
>> León
>>
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-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *

-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
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