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

Sat May 2 00:57:58 UTC 2015

I look forward to seeing in writing the memo updated from the call we have
just had.

If I may be so bold, I think it'd be helpful for the memo to include some
draft bylaw, or explanatory text, about the appointment and removal of the
members and how this can be enforced.

The overall picture I think we are aiming at is that the UAs are truly the
controlled servants of the SOs and ACs. Nobody seems to be disputing that
so far.

cheers,
Jordan

On 2 May 2015 at 12:50, Chris Disspain <ceo at auda.org.au> wrote:

> 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
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>
>
> Adler & Colvin is a San Francisco Green Business certified by the City and
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>
>
> <REVISED memo on unincorporated associations (00673349-4xA3536).docx>
>
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> --
>
> 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 *
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-- 
Jordan Carter

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*InternetNZ*

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Skype: jordancarter

*A better world through a better Internet *
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