[CWG-Stewardship] CCWG California Law Response

[Graeme Bunton]

I read it with some interest, and as was pointed out by Milton and 
others in the Accountability WG, it is legal that advocates from and for 
a particular perspective. Which is of course fine, so long as we don't 
treat this as definitive legal opinion for our purposes.

To me,  it seems to suggest either of two outcomes:
- The re-domiciling of ICANN to a jurisdiction that would allow the 
community to assert itself upon the board
- Some version of the external to ICANN option we've been discussing

Graeme

On 2015-02-09 1:33 AM, Milton L Mueller wrote:
>
> 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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-- 
_________________________
Graeme Bunton
Manager, Management Information Systems
Manager, Public Policy
Tucows Inc.
PH: 416 535 0123 ext 1634

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