[CWG-Stewardship] CCWG California Law Response
Graeme Bunton
gbunton at tucows.com
Mon Feb 9 04:48:30 UTC 2015
Thanks Greg,
Perhaps my desire for brevity left a bit too much open for
interpretation. So, hopefully I can clarify:
The Jones Day document is only one input of many. In my mind it should
not be construed as definitive or final and we should absolutely
continue to seek out and assess our own legal advice (as we are doing).
I am very much looking forward to the fruits of those labours.
I was merely sharing the thoughts that came to me as I read it, with the
intent as you suggest to initiate some conversation. I also agree that
we are a long way away from making the sort of determinations that I
think are raised by that document.
In short, I'm trying to discuss and ponder the content,without trying to
elevate its source above any other input we might have.
If the general sense is that the Jones Day advice isn't helpful, or even
possibly distracting or detractive from our process, then lets
acknowledge it as such and carry on.
Perhaps it would have been more constructive if I had phrased those
thoughts as questions, rather than statements. I think what you're
saying is lets get to those questions when we're farther down the road
and have our own advice.
Graeme
On 2015-02-09 11:29 AM, Greg Shatan wrote:
> Graeme,
>
> May I gently suggest that you are treating this as a definitive legal
> opinion by stating the two outcomes you think it suggests.
>
> I think the outcome it suggests is that we need independent legal
> counseling. I use t he word "counseling" and not "advice" on purpose.
> A good counselor solves a client's problems and protects the client
> from risk. A document like the one in question is at best a jumping
> off point for such counseling, which is by definition interactive and
> iterative in nature.
>
> That said, it's entirely possible that, even after robust attempts at
> problem-solving, that the proposal that best meets the needs of the
> global multistakeholder community could involve an external-to-ICANN
> option or could only be feasible under the laws of a different
> jurisdiction.
>
> But we are far, far away from this.
>
> I'll admit that, in my private practice, there are times I feel that I
> have to walk clients through fairly negative steps in terms of the
> legal environment, risks and worst-case scenarios. But then the real
> work starts (I might even say "the fun begins" but that sounds kind of
> pathetically wonky), starting with "But this is what we can do..." and
> tell them how we will meet their needs. Of course, there are times
> when you need to tell clients "No," but most of the time, it should be
> "No, but..." It's the really rare case where you say "No. Just No."
> (or how do you look in an orange jumpsuit...). Even in those cases,
> you try to find the client a reasonable solution to as many of their
> key points as possible.
>
> So, rather than looking at this as a conversation stopper, it will be
> more fruitful to view it as a conversation starter.
>
> Greg
>
> On Monday, February 9, 2015, Graeme Bunton <gbunton at tucows.com
> <mailto:gbunton at tucows.com>> wrote:
>
> 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 <tel:%2B353%20%281%29663-8787>*
>>
>> *Cell: +353 (86)175-3581 <tel:%2B353%20%2886%29175-3581>*
>>
>> *Email:james at cyberinvasion.net*
>>
>> *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 <tel:416%20535%200123%20ext%201634>
>
--
_________________________
Graeme Bunton
Manager, Management Information Systems
Manager, Public Policy
Tucows Inc.
PH: 416 535 0123 ext 1634
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