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

Wed Apr 29 15:24:48 UTC 2015

Leon, We understood after yesterday’s call that a new draft would circulate and that Sidley and Adler& Colvin would have a chance to comment,  which requires that we have 12 or 16 hours (and preferably 24 hours) with a draft.  We have concerns about some of the language that is being used to describe our advice but do not want to weigh in piecemeal.  Please let us know how we can best support the process and whether we will have this opportunity.  Holly

HOLLY J. GREGORY
Partner

Sidley Austin LLP
+1.212.839.5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: León Felipe Sánchez Ambía [mailto:leonfelipe at sanchez.mx]
Sent: Wednesday, April 29, 2015 10:56 AM
To: ccwg-accountability5 at icann.org
Cc: Sidley ICANN CCWG
Subject: Re: [Acct-Legal] Fwd: [CCWG-ACCT] Suggested text for designator model

Yes Holly. Thanks.

Best regards,

León

El 29/04/2015, a las 9:33, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>> escribió:

To clarify, the Sidley team plans to join the call in the second hour.  Holly

HOLLY J. GREGORY
Partner

Sidley Austin LLP
+1.212.839.5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: ccwg-accountability5-bounces at icann.org<mailto: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 10:19 AM
To: 'ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>'
Subject: Re: [Acct-Legal] Fwd: [CCWG-ACCT] Suggested text for designaor model

Leon –

We would like to ensure some discussion of the IRP process and the results of its outcomes if possible.

Regards,

Ed
EDWARD MCNICHOLAS
Partner

Sidley Austin LLP
+1.202.736.8010
emcnicholas at sidley.com<mailto:emcnicholas at sidley.com>

From: ccwg-accountability5-bounces at icann.org<mailto: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 8:36 AM
To: ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>
Subject: Re: [Acct-Legal] Fwd: [CCWG-ACCT] Suggested text for designaor model

Hi all,

I suggest the following agenda for our call later today:

1. Welcome and roll call (5 minutes)
2. Discussion on suggested text by Robin and Izumi on point 6.6.1.1 as follows: (20 minutes)

"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."

3. Review of questions pending answers (10 minutes)

4. Discussion on implementation (10 minutes)

5. Discussion on overall draft document for public comment (15 minutes)

6. Discussion with lawyers (50 minutes)

7. AOB (10 minutes)

As usual, please feel free to suggest additions or modifications to the agenda.

Saludos,

León

Best regards,

León

El 29/04/2015, a las 7:23, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>> escribió:

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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