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

Sat May 2 00:55:12 UTC 2015

In case Chris isn't a posting member

Jordan

---------- Forwarded message ----------
From: Chris Disspain <ceo at auda.org.au>
Date: 2 May 2015 at 12:50
Subject: Re: [CCWG-ACCT] [Acct-Legal] Fwd: Revised memo on Unincorporated
Associations, with sample Articles of Association attached
To: "Rosemary E. Fei" <rfei at adlercolvin.com>, holly.gregory at sidley.com
Cc: "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>, CCWG
Accountability <accountability-cross-community at icann.org>

Rosemary, Holly,

As promised here is my example:

We have ccUA set up with 5 members nominated by the ccNSO. The bylaws of
the ccUA say that the ccNSO can remove those members at will and replace
them.

The ccNSO decides to replace them and nominates 5 new members. The 5
existing members refuse to stand down. Who can bring an action in
California to make them stand down?

Cheers,

Chris

On 2 May 2015, at 09:57 , Chris Disspain <ceo at auda.org.au> wrote:

Hi Rosemary,

Thanks for this.

But causing the UA to act should be a fairly ministerial function, with
representatives acting as directed, and each SO/AC could decide how it
wants to accomplish that function; they don't all have to use the same
process.

Agreed but is there a legally enforceable process for an SO or AC to
achieve this?

Cheers,

Chris

On 2 May 2015, at 09:50 , Rosemary E. Fei <rfei at adlercolvin.com> wrote:

We avoided making every participant in an SO/AC into a member of that
SO/AC's UA because we understood that such membership would be unacceptable
for some participants in some SO/ACs (I believe in particular that GAC was
mentioned).  Assuming that is still true, then you're stuck with having
only a representational participation in the UA.  But causing the UA to act
should be a fairly ministerial function, with representatives acting as
directed, and each SO/AC could decide how it wants to accomplish that
function; they don't all have to use the same process.

Also, I thought that the accountability issue was with ICANN as a whole,
not within the SO/ACs.  I didn't realize that you were concerned with
control within each SO/AC - with, for example, rogue chairs or factions.
We've been trying, per your instructions, to change as little as possible,
while achieving the powers you've asked for.  We could change more, if this
is a concern.  Instead of UAs, the members could be nonprofit corporations,
but as we said in the memo, it's a lot more disruptive and a lot more work
if you actually incorporate each SO/AC as its own entity, and take its
activities out of ICANN and put them into a new corporation.  But that
might allow you to have greater controls, enforceable under corporate law,
over individuals and factions within the SO/AC.

Rosemary

*From:* ccwg-accountability5-bounces at icann.org [
mailto:ccwg-accountability5-bounces at icann.org
<ccwg-accountability5-bounces at icann.org>] *On Behalf Of *List for the work
of CCWG-Accountability Legal SubTeam
*Sent:* Friday, May 01, 2015 4:39 PM
*To:* ccwg-accountability5 at icann.org
*Cc:* Chris Disspain
*Subject:* Re: [Acct-Legal] [CCWG-ACCT] Fwd: Revised memo on Unincorporated
Associations, with sample Articles of Association attached

We have discussed the option of the SO's and AC's themselves making these
decisions within their existing internal processes (as opposed to creating
a representational body that *could* go rogue on the "represented").  Would
that option change the equation at all?

Thanks,
Robin

On May 1, 2015, at 4:31 PM, List for the work of CCWG-Accountability Legal
SubTeam wrote:

A subsidiary question to tink about:

If the UA's membership is say the Council members of the SO, and one of
those members or more goes "rogue", how can the SO remove them, as they are
the members and the SO still has no corporate existence itself to act as
the member.

Can the UA be bound to act in respect of its membership by the SO? In other
words, could the rules say "The members of this UA are those persons
nominated by the SO, and if the SO deems them no longer members, then they
are no longer members" or words to that effect?

cheers
JOrdan

On 2 May 2015 at 11:19, List for the work of CCWG-Accountability Legal
SubTeam <ccwg-accountability5 at icann.org> wrote:

Agree generally with Greg.
*HOLLY* *J.* *GREGORY*
Partner

*Sidley Austin LLP*
+1.212.839.5853
holly.gregory at sidley.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:* Friday, May 01, 2015 7:11 PM
*To:* Chris Disspain
*Cc:* ccwg-accountability5 at icann.org; CCWG Accountability
*Subject:* Re: [Acct-Legal] [CCWG-ACCT] Fwd: Revised memo on Unincorporated
Associations, with sample Articles of Association attached

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 directed 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
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=m4hhPkmciRfWDIZI9AOAxz3ImC_IwVdQVggFwiZ92KY&s=KOvxK-iaQWwilK98zpYQHuveTyWZyxErN5oYli8HpbA&e=>

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
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=m4hhPkmciRfWDIZI9AOAxz3ImC_IwVdQVggFwiZ92KY&s=KOvxK-iaQWwilK98zpYQHuveTyWZyxErN5oYli8HpbA&e=>

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
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.adlercolvin.com&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=m4hhPkmciRfWDIZI9AOAxz3ImC_IwVdQVggFwiZ92KY&s=846h7dpxEzSsuLruMFvUrt0NJVg9SsnsXJoYTKx9wGA&e=>

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>

_______________________________________________
Ccwg-accountability5 mailing list
Ccwg-accountability5 at icann.org
https://mm.icann.org/mailman/listinfo/ccwg-accountability5
<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ccwg-2Daccountability5&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=m4hhPkmciRfWDIZI9AOAxz3ImC_IwVdQVggFwiZ92KY&s=KXhupLH6ZJ-4UiBJGKjYb3JohXRGNOcidKHAJQsAFlc&e=>

_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=m4hhPkmciRfWDIZI9AOAxz3ImC_IwVdQVggFwiZ92KY&s=nTaM7_GrOr3CEotcfwvt-NTiVH5cIr7VsSoDdvASofc&e=>

_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=m4hhPkmciRfWDIZI9AOAxz3ImC_IwVdQVggFwiZ92KY&s=nTaM7_GrOr3CEotcfwvt-NTiVH5cIr7VsSoDdvASofc&e=>

****************************************************************************************************
This e-mail is sent by a law firm and may contain information that is
privileged or confidential.
If you are not the intended recipient, please delete the e-mail and any
attachments and notify us
immediately.

****************************************************************************************************

_______________________________________________
Ccwg-accountability5 mailing list
Ccwg-accountability5 at icann.org
https://mm.icann.org/mailman/listinfo/ccwg-accountability5

--

Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
_______________________________________________
Ccwg-accountability5 mailing list
Ccwg-accountability5 at icann.org
https://mm.icann.org/mailman/listinfo/ccwg-accountability5

_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ccwg-accountability5/attachments/20150502/5959f5ab/attachment-0001.html>