[Acct-Legal] Fwd: [CCWG-ACCT] Sidley Austin/Adler & Colvin Response to the CCWG WP2 Templates

[List for the work of CCWG-Accountability Legal SubTeam]

Counsel,

I am forwarding these comments made on the general list for your information and in case you want to reply to the comments posed.


Best regards,


León

> Inicio del mensaje reenviado:
> 
> Fecha: 21 de abril de 2015 5:10:37 GMT-5
> De: Malcolm Hutty <malcolm at linx.net>
> Para: León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>, Accountability Cross Community <accountability-cross-community at icann.org>
> Asunto: Re: [CCWG-ACCT] Fwd: [Acct-Legal] Sidley Austin/Adler & Colvin Response to the CCWG WP2 Templates
> 
> 
> On 21/04/2015 08:34, León Felipe Sánchez Ambía wrote:
>> Dear all,
>> 
>> I am forwarding the document prepared by Counsel on WP2 templates. 
> 
> 
> Thank you. Reading this document, I wonder how well Counsel have
> understood the issues WP2 is seeking to address with its proposals.
> 
> 
> Counsel states:
> 
> "The risk that the board would reject even advisory IRP decisions can be
> minimized through other accountability mechanisms. The threat of board
> recall is present in either member or designator models. Indeed, the
> board would have strong incentives not to lightly reject decisions of
> the IRP, just as members/designators would have strong incentives not to
> lightly recall the board."
> 
> and later
> 
> "Nevertheless, the ability to recall the board would
> indirectly provide great incentives for IRP decisions to be honored
> and ratified."
> 
> 
> This betrays a clear failure to understand that IRP as proposed is being
> provided not only for the benefit of ICANN community structures - which
> participate in the decision to recall the Board - but also for the
> benefit of individual entities and third parties, who may not.
> 
> In the case of an IRP challenge where an individual company claimed that
> ICANN had breached its bylaws or was acting beyond its authorised scope,
> it is entirely plausible that the ICANN community structures would be
> cheering the Board on: indeed, the Board's alleged transgression may
> well have come about as a direct result of community consensus policy.
> We are proposing a binding IRP to control ICANN; not only to protect the
> community from the Board, but also to protect individual entities from
> inappropriate behaviour by the ICANN community.
> 
> In such circumstances, the affected individual entity can have little
> hope that the community would sack the Board for refusing to reverse a
> decision that the community structures instigated and support.
> 
> Counsel's advice demonstrates that they have not understood this
> important part of our objectives, which rather undermines the
> credibility of their suggestions as to what may be satisfactory or
> sufficient.
> 
> Malcolm.
> -- 
>            Malcolm Hutty | tel: +44 20 7645 3523
>   Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange | http://publicaffairs.linx.net/
> 
>                 London Internet Exchange Ltd
>           21-27 St Thomas Street, London SE1 9RY
> 
>         Company Registered in England No. 3137929
>       Trinity Court, Trinity Street, Peterborough PE1 1DA
> 
> 

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