[CWG-Stewardship] Another alternative proposal - addressing some questions
carlton.samuels at gmail.com
Fri Jan 23 01:02:49 UTC 2015
Ooops. Should have read the entire thread......and waited for a real
lawyer to ask the question!
Carlton A Samuels
*Strategy, Planning, Governance, Assessment & Turnaround*
On Thu, Jan 22, 2015 at 4:00 PM, Greg Shatan <gregshatanipc at gmail.com>
> A few quick comments, inline below:
> 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
>> 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.
>> 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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