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

Wed Apr 29 14:28:19 UTC 2015

Thank you Robin, Izumi, and Greg:

I understand Robin’s point about deleting the last sentence of the headquarters paragraph in Section 4 (on page 17 in my draft so I won’t mention pages, just sections).

But that sentence makes the point (at least to some degree) that ICANN is likely subject to jurisdiction for lawsuits around the world (i.e. the language, “to be held responsible in a court of proper jurisdiction for its dealings with the global community”). So I suggest not striking it altogether – how about this alternative:

“Except to the extent of applicable and enforceable contract waivers, ICANN can sue and be sued for its actions and be held responsible in a court of proper jurisdiction for its dealings with the global community.”
I also can see Robin’s point about the final three paragraphs in section 4 sounding almost as if PR announcements. But they do exist to some degree, even if there are some serious flaws (I say that because I see serious flaws in DIDP exceptions, among other things).

Why not have one bullet

“Other Mechanisms (Note – as with some others, differences of opinion exist over the usefulness of these mechanisms which will be addressed in Work Stream Two)”

– and then simply leave the three as is as sub-bullets.

With respect to editing section 6.6.1.1 d) 4 to add “under California law” I would prefer instead to see such a reference in the heading in 6.6.1.1 d)., changing the final sentence to read:

“The Reference Mechanism would exist pursuant to California law (as would other mechanisms considered) and would have the following key characteristics:”

I see that suggested edits to 6.6.1.1 f) are in part a focus of our call today.

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: Wednesday, April 29, 2015 8:24 AM
To: ccwg-accountability5 at icann.org
Subject: [Acct-Legal] Fwd: [CCWG-ACCT] Suggested text for designaor model

Fyi.

---------- Forwarded message ----------
From: Izumi Okutani <izumi at nic.ad.jp<mailto: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<mailto: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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