[CWG-Stewardship] Another alternative proposal - addressing some questions

[Greg Shatan]

Chris,

A few quick comments, inline below:

*Greg*

On Thu, Jan 22, 2015 at 3:13 PM, Chris Disspain <ceo at auda.org.au> wrote:

> Greetings All,
>
> Earlier today Paul Szyndler from auDA sent to RFP3 another alternative
> proposal (attached).
>
> I have received a number of questions off list from some ccTLD colleagues
> and others and thought it might be helpful to address them all in this
> email to the CWG.
>
> 1. Are there legal issues with the Trust solution? I am not an expert in
> Californian law but as a lawyer I do know a fair bit about trusts and their
> structure. The proposal is workable in general terms but there may be
> nuances of Californian law generally, or specifically as it applies to
> Californian corporations like ICANN, which would make the proposed
> structure overly complicated or problematic. Like the 'contract co’
> proposal and auDA’s original ‘golden by-law’ proposal I expect this to be
> put to independent legal experts who can advise on the merits of each of
> the proposals.
>

> 2. Isn’t creating a trust just creating 'contract co' by another name? No.
> My understanding of 'contract co’ is that it would be a separate legal
> entity owned by some, yet to be identified, group of shareholders.
>

Chris:  This is not correct. The proposal was that Contract Co would be a
not-for-profit corporation, which don't have shareholders (or any kind of
owner).  Also, trusts are separate legal entities, so it is similar to
Contract Co in that regard (and thus prey to many of the same
"complexities.")


> With the trust, ICANN would own the IANA function but declare in a legally
> binding document that it did so on trust for the relevant stakeholder
> community.
>

It's my understanding that trusts are created to hold property.  Shouldn't
the Trust (and not the Trustee) own the IANA function?  If the Trust
doesn't hold the IANA Functions, what assets are held by the Trust?

And the Guardian of the Trust (see the proposal for details) would control
> the process by which ICANN could be replaced as trustee in a defined set of
> circumstances. This is thus an inherently ‘internal to ICANN’ approach.
>

I'm not familiar with this "guardian" concept (unless it was created
uniquely for this proposal).  Is this an Australian law concept?  Do you
know if this is similar to the "trust protector" concept in the US?

>
> 3. Why would ICANN be the trustee? In simple terms because auDA believes
> in an 'internal to ICANN’ approach. We believe that ICANN should run IANA
> but that there should be the ability to move the IANA function away in
> certain defined circumstances. That is what this proposal (and our first
> ‘golden by-law' proposal) achieve and that’s what differentiates them from
> the ‘contract co’ proposal.
>
> I know I don’t need to say this but for the avoidance of doubt, this is
> an auDA proposal. I have not discussed it with my fellow ICANN directors
>
> I will not be on the RFP3B call Friday as I’ll be somewhere mid-air
> between Dubai and Melbourne. However, Paul Szyndler will be on the call and
> will happily enter into any discussion on the proposal and answer (or
> undertake to get answers to) any questions that may be raised.
>
> I hope this is helpful.
>
> Cheers,
>

Thanks,

Greg

>
>
> 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
>
> auDA – Australia’s Domain Name Administrator
>
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