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

Alan Greenberg alan.greenberg at mcgill.ca
Sun Jul 12 04:00:54 UTC 2015


At 5 am on a Sunday morning, I think I will pass on this one.  😯

Alan
-- 
Sent from my mobile. Please excuse brevity and typos.

On July 11, 2015 11:15:46 PM EDT, Jordan Carter <jordan at internetnz.net.nz> wrote:
>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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