[Acct-Legal] Fwd: [CCWG-ACCT] Suggested text for designaor model

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

Fyi.

---------- Forwarded message ----------
From: *Izumi Okutani* <izumi at nic.ad.jp>
Date: Wednesday, April 29, 2015
Subject: [CCWG-ACCT] Suggested text for designaor model
To: accountability-cross-community at icann.org


I see Robin has suggested text for this part.
I support this text, so rather than for the group to review two different
texts, it would be good if anyone who has comments could comment on this
text. Thanks.

---
p. 52 edit (f) as follows:
"Designators are a construct in California law that can achieve reliable
enforcement of 4 of the 6 community powers sought, specifically with
respect to community approval or blocking of changes of bylaws and the
selection and removal of board members.  There is concern however,
regarding the ease and reliability with which the other 2 community powers
sought (approval of budget and strategic plan) can be enforced once created
under the designator model, according to legal counsel.  Legal counsel
further advises that the SOs and ACs organize themselves into
unincorporated associations in both corporate governance models, whether a
designator or membership structure."
---

Izumi

On 2015/04/29 5:13, Izumi Okutani wrote:
> Dear all,
>
>
> As mentioned at the # 30 CCWG call, I'd like to suggest text changes for
6.6.1.1 f).
>
>
> 6.6.1.1 The Community Mechanism: Reference
> Mechanism
>
> CURRENT TEXT
> Designators are a construct in California law that can achieve some of
the powers proposed below ‐
> mainly those regarding the selection and removal of Board members and the
approval or blocking of
> changes to bylaws. But they cannot reliably deliver other aspects of the
set of powers the CCWG
> believes the community needs, if it is to fully hold ICANN to account.
Crucially, in the view of our
> counsel, this would also oblige the SOs and ACs to organise themselves
into unincorporated
> associations ‐ and so some perceived simplicity compared with the
membership model isn’t actually
> possible.
>
> SUGGESTED TEXT
>
> f) Designators are a construct in California law that can achieve some of
the powers proposed below - As ICANN's SOs/ACs struture is consistent with
this model, "the selection and removal of Board members" and "the
> approval or blocking of changes to bylaws" can be achieved by changing
the ByLaws to define the role of SOs/ACs as designators, without the need
to organise unincorporated association. But they cannot reliably deliver
other aspects of the set of powers the CCWG believes the community needs,
such as statutory power for full board dismissal and ability to have legal
standing in court for enforcement of rights, if it is to fully hold ICANN
to account.
> Crucially, in the view of our counsel, to have dismissal of the entire
board and for legal enforcement of rights in court, would require some
additional contractual relationships between SOs/ACs and ICANN, which would
also oblige SOs and ACs to establish themselves into unincorporated
associations, so some of the perceived simplicity compared with the
membership model isn't actually achievable.
>
>
> Izumi
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