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

Wed Apr 29 14:45:04 UTC 2015

I am forwarding this document sent by Jordan. It contains the text version he suggests we discuss and review at our call today.

Best regards,

León

> Inicio del mensaje reenviado:
> 
> De: Jordan Carter <jordan at internetnz.net.nz>
> Asunto: Re: [Acct-Legal] [CCWG-ACCT] Suggested text for designaor model
> Fecha: 29 de abril de 2015 8:09:26 GMT-5
> Para: "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>, Greg Shatan <gregshatanipc at gmail.com>, "Gregory, Holly" <holly.gregory at sidley.com>, "Rosemary E. Fei" <rfei at adlercolvin.com>, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>, Thomas Rickert <rickert at anwaelte.de>, Mathieu Weill <Mathieu.Weill at afnic.fr>, ACCT-Staff <acct-staff at icann.org>, Izumi Okutani <izumi at nic.ad.jp>, Robin Gross <robin at ipjustice.org>
> 
> Hi team
> 
> I've attached a Word document that actually has the current draft text for this that I am working on. It is NOT THE SAME as what Robin proposed.
> 
> I have copied lots of you in direct on this email as I don't have posting rights.
> 
> Can this be what Counsel review, please?
> 
> Sorry to intrude....
> 
> cheers
> Jordan
> 
> 
> On 30 April 2015 at 00:56, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>> wrote:
> Greg, we agree with your concerns regarding the language highlighted. Please let us know if you would like us to mark up the suggested text. Holly 
> 
> 
> 
> Sent with Good (www.good.com <http://www.good.com/>)
> 
>  
> 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 12:14:09 AM
> To: Izumi Okutani; ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>
> Cc: Accountability Cross Community
> Subject: Re: [Acct-Legal] [CCWG-ACCT] Suggested text for designaor model
> 
> I am forwarding this email into the Legal Subteam for discussion and possible referral to counsel.
> 
> In the "suggested text," which I've pasted in below, I believe the text that I have highlighted and bolded is contrary to the advice we have received from Sidley/Adler and in some cases may inadvertently misstate that advice.  Rather than pick it apart here, I think it makes more sense to discuss this with Sidley/Adler and then bring it back to the full list or the next full meeting if need be.
> 
> Greg
> 
> 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.
> 
> 
> 
> On Tue, Apr 28, 2015 at 4:13 PM, Izumi Okutani <izumi at nic.ad.jp <mailto:izumi at nic.ad.jp>> 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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> -- 
> Jordan Carter
> 
> Chief Executive 
> InternetNZ
> 
> 04 495 2118 (office) | +64 21 442 649 (mob)
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