[Acct-Legal] [CCWG-ACCT] Fwd: Revised memo on Unincorporated Associations, with sample Articles of Association attached

Fri May 1 23:10:37 UTC 2015

Chris,

The UA is composed of the members of the SO/AC or some subset thereof, and
the bylaws of the UA would dictate that it should follow the direction of
the SO/AC and that the members of the UA have no leeway to deviate from
that direction.

If the SO/AC has all the same members as the UA, then there is no
possibility that the UA could act differently from the SO/AC.

So we would need to look at a situation where the members of the UA are a
subset of the members of the SO/AC.  This breaks down, most likely, to two
scenarios.

In the first scenario, a small group of members of the SO/AC are selected
by the SO/AC to act as the members of the UA.  I would assume, like most
elected leaders and representatives, that those chosen would be relatively
well-regarded, trustworthy, longstanding, active contributors to that SO/AC
(consider,e.g., GNSO councilors or SO/AC leadership as examples), and that
they would indicate that they understood the nature of the role as part of
the selection process.  As an example, let's assume that the members of the
GNSO's UA were the Chair of the GNSO and the Chairs of each SG.  Your
hypothesis is that these 5 worthies would somehow "go rogue" and hijack the
GNSO's UA, violate the bylaws of the UA, and refuse to follow directions
from the GNSO (which would undoubtedly be quite public).

In the second scenario, a large number (but not all) of the members of the
(e.g.) GNSO become members of the GNSO's UA.  As in the first scenario,
they would acknowledge and agree as a condition of membership the nature of
their role and the role of the UA.  Again, your hypothesis is that this
mass of GNSO members would somehow break from the GNSO and the SGs that
they are members of, and act in violation of the UAs bylaws and their
agreement to act in a limited capacity.

In response (either way), the GNSO would have removed these "rogues" as
members of the UA and replaced them with a crew that would act in
accordance with the bylaws and the direction of the GNSO.  In all
likelihood, they would be removed from the GNSO as well.  So your
hypothetical further assumes that, in spite of this gross violation of the
UA's bylaws and a public declaration that the members were being removed
and replaced and that the invalid actions were being reversed, the other
UAs (and/or ICANN) would continue to recognize the invalid actions of the
rogue deposed members and not the actions of the replacement members acting
in accordance with the public instructions of the GNSO.

I suppose there is a technical possibility that this could occur, but I
fail to see it as a practical possibility.  Furthermore, if this has
happened, ICANN and the multistakeholder model must have become so
incredibly broken that an attempt to hijack UA would not be our most
significant concerns.

That said, it's appropriate to clarify the answer to your question from a
legal standpoint as well as a practical one and we'll look to Sidley and
Adler & Colvin to help us with that.

Greg

On Fri, May 1, 2015 at 6:28 PM, Chris Disspain <ceo at auda.org.au> wrote:

> Thanks.
>
> I'll assume it attempts to. Here's what is says:
>
> "The control mechanism for an SO/AC over its unincorporated association
> could be essentially the same as whatever control mechanisms currently
> exist to ensure that the SO/ACs do what their participants collectively
> decide they should do.  *For example, if an SO/AC has a chair, that chair
> could be empowered and directed by the participants in the SO/AC to cause
> the unincorporated association of that SO/AC to act as dir**ected by the
> SO/AC to exercise membership or designator rights.*  If the chair
> refused, that chair could presumably be subjected to discipline or removed
> and replaced under existing procedures within the SO or AC, just as if the
> chair had refused to take any other action as directed by the SO/AC.  If
> existing control mechanisms within SO/ACs are insufficient, the SO/AC could
> modify them to address the weakness."
>
> I refer to the text in bold. I agree. However this does not answer the
> question, "and what power of enforcement over the UA does the SO or AC have
> if the UA refuses to act as directed or if it starts to act on its own
> behalf without direction?".
>
> This is and has been the point I have been making for the last day or so.
>
> Cheers,
>
> Chris Disspain | Chief Executive Officer
> .au Domain Administration Ltd
> T: +61 3 8341 4111 | F: +61 3 8341 4112
> E: ceo at auda.org.au | W: www.auda.org.au
>
> auDA - Australia's Domain Name Administrator
>
> On 2 May 2015, at 08:20, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>
> wrote:
>
> Hi Chris!
>
> I'm sorry but can't tell because I'm on the road and haven't had the
> chance to go through the document but I forwarded it because I didn't want
> to hold it.
>
> Cheers!
>
>
> León
>
> Enviado desde el móvil.
> Errores tipográficos son culpa del tecladito y mis dedos gordos.
>
> El may 1, 2015, a las 3:17 PM, Chris Disspain <ceo at auda.org.au> escribió:
>
> Thanks León.
>
> Jus to check, are the changes meant to deal with the question I asked the
> other day and have been exchanging with Greg and Jordan about? Or is that
> being answered separately?
>
> Cheers,
>
> Chris Disspain | Chief Executive Officer
> .au Domain Administration Ltd
> T: +61 3 8341 4111 | F: +61 3 8341 4112
> E: ceo at auda.org.au | W: www.auda.org.au
>
> auDA - Australia's Domain Name Administrator
>
> On 2 May 2015, at 08:10, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>
> wrote:
>
> Hi all,
>
> An update from the lawyers with regards to UAs
>
> Best regards,
>
>
> León
>
> Enviado desde el móvil.
> Errores tipográficos son culpa del tecladito y mis dedos gordos.
>
> Inicio del mensaje reenviado:
>
> *De:* List for the work of CCWG-Accountability Legal SubTeam <
> ccwg-accountability5 at icann.org>
> *Fecha:* 1 de mayo de 2015, 3:03:54 PM PDT
> *Para:* "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>
> *Cc:* "Sidley ICANN CCWG \(sidleyicannccwg at sidley.com\)" <
> sidleyicannccwg at sidley.com>, ICANN-Adler <ICANN at adlercolvin.com>
> *Asunto:* *[Acct-Legal] Revised memo on Unincorporated Associations, with
> sample Articles of Association attached*
> *Responder a:* ccwg-accountability5 at icann.org
>
>  Dear Legal Sub-team:
>
>
>
> We attach a revised version of the unincorporated associations memo from
> April 23, 2015, which now has a description of the proposed uses of
> unincorporated associations in ICANN’s governance structure, and 2 new
> questions received since April 23, as well as some clarifying edits to
> prior answers to questions.  We hope this is useful for the upcoming call,
> and perhaps as an annex to the CCWG Draft Proposal.  A redline against the
> April 23 version will be provided shortly.
>
>
>
> Rosemary
>
>
>
> Rosemary E. Fei
> Adler & Colvin
> 235 Montgomery Street, Suite 1220
> San Francisco, CA 94104
> 415/421-7555 (phone)
> 415/421-0712 (fax)
> rfei at adlercolvin.com
> www.adlercolvin.com
>
>
>
>
>
> Adler & Colvin is a San Francisco Green Business certified by the City and
> County of San Francisco. Please consider the environment before you print
> this email.
>
>
>
> <REVISED memo on unincorporated associations (00673349-4xA3536).docx>
>
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