[WP1] Comments and questions please on legal docs

Thu Apr 16 10:21:19 UTC 2015

>I'm not sure where this assumption that there would be a single community member, contained in both Roelof's initial e-mail >and Jordan's response, comes from

It, the sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69).

I get the impression that it is viable and simplifies a lot, so I would urge us to pay attention to it.

Best,

Roelof

From: Edward Morris <egmorris1 at toast.net<mailto:egmorris1 at toast.net>>
Date: woensdag 15 april 2015 12:46
To: Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Cc: Roelof Meijer <roelof.meijer at sidn.nl<mailto:roelof.meijer at sidn.nl>>, "wp1 at icann.org<mailto:wp1 at icann.org>" <wp1 at icann.org<mailto:wp1 at icann.org>>
Subject: Re: [WP1] Comments and questions please on legal docs

I disagree with this assessment.

A bottom up membership model would create members at lower levels than the community as a whole. Without the certainty of contractual relationships between SO/AC's, ICANN and each other I fail to see how the interests of all community members can be guaranteed against possible capture by certain combined interests.

I'm not sure where this assumption that there would be a single community member, contained in both Roelof's initial e-mail and Jordan's response, comes from but I feel compelled to point out this structure was not broadly anticipated in the membership template (which refers to "members", anticipating multiple members based upon the current SO/AC structures) nor in the legal memos received to date. Although it may be an idea worth exploring, it certainly is not the membership concept that has previously been proffered or vetted.

Sent from my iPad

On Apr 15, 2015, at 8:35 AM, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> wrote:

Hi all, hi Roelof:

On 15 April 2015 at 01:04, Roelof Meijer <Roelof.Meijer at sidn.nl<mailto:Roelof.Meijer at sidn.nl>> wrote:
Jordan, all,

More than a concrete question, I would like to check if I understood the high lines correctly. At  the risk of oversimplifying matters. „Over" would not be good, but glancing at our timetable, I guess we can deal with a few simplifications.

If I would have to summarize what I think I have learned, it would be something like this:

  *   Giving the powers we envisage to the stakeholders in some structure or another and incorporating the AoC etc in the bylaws is possible. General veto and the power to force the board to act on something are more difficult to arrange, but still possible
  *    As for mechanisms (structure by which the community is empowered), two main ones are the most viable, each having its variances that make it simpler/more complex and/or less/more viable:

1.     Two-tier or “board-in-a-board” construction. Part of the board is the executive committee and runs the organization, the other members kind of „oversee”. Disadvantage: also the non-executives have fiduciary duty towards organization, cannot be forced to decide in consultation with their constituencies?

2.     Statutory membership structure, whereby the group of community representatives (Community Council or some other form) is sole statutory member of ICANN and thus a separate legal entity , Disadvantage: will have to set up separate legal entity and incorporate into ICANN bylaws

So my question is: Did I roughly get this right?

In my opinion, and I am not a lawyer, I think that you did. There is a sub-text to 2., which is the need to examine whether designator model, sort of related to membership, can also deliver. In the CCWG call about 19h ago, this was the main topic of discussion (the two tiered board didn't really show through).

If you are able to do so, it would be good to ask away on this with Counsel on our forthcoming call.

Then for our group to chew on (if I got it right, that is):

A reflection of the „Board-in-a-board”: the executive committee could be the CEO and NomCom appointed board members, the rest the SO and AC appointed board members. Split the board in two, so to speak, making sure the executives have a minority. Makes for a more agile, smaller executive body, no new structure…

A reflection on the membership structure: make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives

I do hope you can make the call in about 13.5hrs, and discuss these with us and with Counsel then.

bests,
Jordan

Cheers,

Roelof

From: Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Date: dinsdag 14 april 2015 00:32
To: "wp1 at icann.org<mailto:wp1 at icann.org>" <wp1 at icann.org<mailto:wp1 at icann.org>>
Subject: [WP1] Comments and questions please on legal docs

Hi all

We discussed very briefly two documents today:

- the lawyers' response to our powers and mechanisms templates (PDF here: Legal Assessment: Proposed Accountability Mechanisms Preliminary Response to Legal Sub-team Templates identified in Memorandum Ref CCWG/SA/002<https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20Cover%20Memo%20and%20Templates.pdf?version=3&modificationDate=1428797461000&api=v2>)
- the lawyers' brief comments on our comment document content (PDF attached "WP1 - cover memo (CCWG powers) and online at Legal Assessment: Community Empowerment Proposed Powers<https://community.icann.org/download/attachments/52888421/WP1-%20Cover%20Memo%20%28CCWG%20Powers%29.pdf?version=2&modificationDate=1428959923199&api=v2>)

If you have questions or comments on these, it would be very helpful for you to circulate them on this email list, or send them directly to me in reply to this email.

I will pass them on to the legal sub-team to make sure they get through to Counsel.

If you are writing questions, my suggestion is you stop and ask yourself: "Does taking time to ask this question and perhaps get it answered, help us get our comment document ready?" If the answer is that you aren't sure or is no, please don't ask the question. :-)

best,
Jordan

--
Jordan Carter

Chief Executive
InternetNZ

04 495 2118<tel:04%20495%202118> (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob)
jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
Skype: jordancarter

A better world through a better Internet

--
Jordan Carter

Chief Executive
InternetNZ

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
Skype: jordancarter

A better world through a better Internet

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