[WP1] Fwd: Caretaker Board background & what WP1 needs (was Re: Legal advice on caretaker board issue)

Sun Jul 12 03:15:46 UTC 2015

Dear WP1 colleagues

As agreed on our call on 10 July, I approached the CoChairs to find out how
to get the lawyers looking at the caretaker board framework that would be
needed if the community exercised the power to recall the entire ICANN
Board.

This exchange led to Mathieu suggesting a quick call with the lawyers to
set out what work needs to be done.

That call will happen *Sunday 12 July at 0900 UTC* and should last ten or
fifteen minutes.

So I have written the background information below, and copied the note
Keith Drazek took us through on the 10 July call.

The *purpose *of the phone call is *not *to hear the lawyers' proposals
about how to do the caretaker issue - it is to make sure they are *clear
about what the issue of the caretaker board is, and when we need some
material in writing from them on the subject.*

I regret the late notice of this call. We are only going ahead with it to
get the lawyers to start thinking on these matters, so they have done some
of that thinking before we meet with them in Paris.

None of the discussion we have with them on this call on 12 July will close
any options or pre-judge any solutions.

best,
Jordan

---------- Forwarded message ----------
From: Jordan Carter <jordan at internetnz.net.nz>
Date: 12 July 2015 at 15:09
Subject: Caretaker Board background & what WP1 needs (was Re: Legal advice
on caretaker board issue)
To: Mathieu Weill <Mathieu.Weill at afnic.fr>
Cc: "Rosemary E. Fei" <rfei at adlercolvin.com>, Holly Gregory <
holly.gregory at sidley.com>, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>,
Thomas Rickert <rickert at anwaelte.de>, Cheryl Langdon-Orr <
langdonorr at gmail.com>, stevedelbianco <sdelbianco at netchoice.org>, Becky
Burr <Becky.Burr at neustar.biz>, ICANN-Adler <ICANN at adlercolvin.com>,
ACCT-Staff <acct-staff at icann.org>

Thank you Mathieu, all.

I believe this call is set for 0900 UTC on Sunday 12 July. I look forward
to, hopefully, a brief conversation then. I'll forward this to WP1.

*By way of background*, noting this is content I am writing for this email
and may not reflect consensus in WP1:

   - One of the proposed community powers is to recall the entire ICANN
   Board.
   - Our First Public Comment Report noted some issues that need to be
   solved to deal with the follow-on requirements caused by such an action by
   the community.
   - Where a Board is removed through such a process, there is a need to
   know who will hold office as Directors.
   - This could be the outgoing Board, or an agreed immediate appointment
   of some group of people to act as Directors to govern the corporation.
   - In either case it is likely that this Board should/must have a
   "caretaker" ethos - it should be a short term governing group whose role is
   to govern in a status quo fashion insofar as is possible until new
   directors are appointed.
   - There will need to be an expedited process to appoint new directors
   following the recall of the whole Board - the usual processes take too long
   in some cases.

When we discussed these matters in Istanbul in March, I recall verbal
comments from counsel that developing a caretaker Board framework would not
be complicated.

Some of the comments received in response to our PC1 report relate to this
issue, and WP1 members have started to take these into account in the
attached redline document. *Page 2 para 246* starts the discussion.

*What WP1 needs help with *

We need counsel's help to draft text for the Second Public Comment Report
that sets out an effective, lightweight caretaker board proposal, broadly
consistent with what was in our PC1 report and with the attached draft
(subject to tweaks agreed in Paris).

It should deal, in my view and at a high level, with the following:

   - Who takes over as directors if the entire board is recalled
   - What happens to the President and CEO
   - What high level process leads to re/appointments of longer term
   directors
   - What the "caretaker" responsibilities or limits on Board authorities
   are, and how these are described/enforced
   - Any other related matters

It does not have to be done in great detail but it needs to be of
sufficient extent and quality that it is persuasive for the CCWG that there
is a workable, reliable governance of ICANN in place if this power is
exercised, until appointment of longer term directors occurs.

*When do we need it by*

We need it in time to review, change and incorporate in the Public Comment
Report 2, -- so realistically we need to see draft material no later than
about *22 July*.

*What should we discuss on the call on 12 July at 0900 UTC?*

I think this is a very short call, to take any questions you may have about
what I have set out above.

Look forward to the discussion.

best
Jordan

On 11 July 2015 at 18:37, Mathieu Weill <mathieu.weill at afnic.fr> wrote:

>  Hi Jordan,
>
> Do set a time and date as you see fit, you know the question, you are
> necessary.
>
> Leon and/or I will try to accomadate, even over the WE for me. I'm copying
> Icann staff so that we can organize support.
>
> We'll need to inform WP1 of the upcoming call.
>
> Mathieu
>
[snip]
>>
>> On Saturday, 11 July 2015, Mathieu Weill <mathieu.weill at afnic.fr<mailto:
>> mathieu.weill at afnic.fr>> wrote:
>> Hi Jordan,
>>
>> The topic does need further research indeed.
>>
>> Ideally, we would set up a quick call with holly and/or Rosemary to
>> clarify the issues to investigate. Anything you can start in terms of
>> clarifying the request upfront is of course useful.
>>
>> Is Monday still feasible ?
>>
>> Mathieu Weill
>> ---------------
>> Depuis mon mobile, désolé pour le style
>>
>> Le 10 juil. 2015 à 22:17, Jordan Carter <jordan at internetnz.net.nz> a
>> écrit :
>>
>> Dear Leon
>>
>> On the WP1 call this morning, we recognised the need to seek assistance
>> from our counsel regarding the matter of a caretaker board where a
>> community power to recall the whole ICANN Board is exercised.
>>
>> Can you advise whether this can be passed to them, or whether you would
>> like me to specify the question more clearly?
>>
>> thanks
>> Jordan
>>
>> --
>> Jordan Carter
>>
>> Chief Executive
>> InternetNZ
>>
>> 04 495 2118 (office) | +64 21 442 649 (mob)
>> jordan at internetnz.net.nz
>> Skype: jordancarter
>>
>> A better world through a better Internet
>>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
>

-- 
Jordan Carter

Chief Executive
*InternetNZ*

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

*A better world through a better Internet *
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