[CWG-Stewardship] CCWG California Law Response

[Milton L Mueller]

People who read this should keep in mind that Jones Day is ICANN's lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.

From: cwg-rfp3-bounces at icann.org [mailto:cwg-rfp3-bounces at icann.org] On Behalf Of James Gannon
Sent: Sunday, February 8, 2015 5:11 AM
To: cwg-stewardship at icann.org
Cc: RFP3
Subject: [CWG-RFP3] CCWG California Law Response

I believe that the CWG should be aware of the response from Jones Day to the CCWG's questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
https://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf
I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.html

>>Initial Responses to the Community Working Group's California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here<http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf>)--

Jones Day: ".... It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board's budget and would not be able to propose or approve a separate budget. As with any new structure, adding "members" or "delegates" raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of "members" or "delegates," while initially appealing, may not solve the underlying problems and could simply result in moving the "problems" to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ....

"4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action?

"No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board...."

James Gannon
Director
Cyber Invasion Ltd
Dun Laoghaire, County Dublin, Ireland
Office: +353 (1)663-8787
Cell: +353 (86)175-3581
Email:james at cyberinvasion.net<mailto:james at cyberinvasion.net?subject=Via:%20Email%20Signature>
GPG: https://keybase.io/jayg



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