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

Carlton Samuels carlton.samuels at gmail.com
Fri Jan 23 01:00:30 UTC 2015

A question for clarification.

I'm no lawyer but at one of these bespoke business schools the fella told
me one thing that sticks. Trusts are created to hold and conserve property
he says. I'm assuming the general meaning of trusts is shared by
Massachusetts as California.  So now, what is the property that is held?
Would that be the [or a] contract?


Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*

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. 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.
> 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.
> 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,
> 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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