[WP1] Inherent powers of CMSM

[Samantha Eisner]

Malcolm, do I understand your statement to mean that the member will have standing to resort to the IRP?  We can't require ICANN to ENTER an IRP - that sounds as if ICANN is filing against itself.  If the member has standing to initiate an IRP filing, then ICANN would have to participate in that process, or risk the consequences of failing to participate (adverse ruling, potential board spill, etc.)

I see a second concept in your note, which is that of binding ICANN to the ruling of the IRP.  If parties are going to be able to proceed to court to force compliance with an IRP to which they were a party, the IRP would have to provide for that.  Separately, if not following an IRP ruling would be a violation of the Bylaws, then the member may be able to use that as a basis of a derivative suit because of the statutory powers that follow from being a member.

I agree with Greg on the potential confusion here with the use of the word "automatic."  Assuming that I haven't misstated the law in here, is this what I should understand your were trying to say?

From: <wp1-bounces at icann.org<mailto:wp1-bounces at icann.org>> on behalf of Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Tuesday, July 28, 2015 at 11:22 AM
To: Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>>
Cc: "wp1 at icann.org<mailto:wp1 at icann.org>" <wp1 at icann.org<mailto:wp1 at icann.org>>
Subject: Re: [WP1] Inherent powers of CMSM

I have stated more than once that the statutory members are at the top of the heap in a membership non-profit, and have powers far beyond those of mortal men.  But I'm not clear how the CMSM will -- in practical terms -- have the ability to require ICANN to enter into an IRP and abide by its outcome (other than by threatening to spill or in fact spilling the board).  I don't see anything "automatic." What am I missing?

Greg

On Tue, Jul 28, 2015 at 10:22 AM, Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>> wrote:
Here is the text I propose to be added to the CMSM section, to reflect
the inherent powers of the CMSM.


In Section 5A.1 at the end, after where it says:

"Under these arrangements the decisions and powers of the CMSM could be
enforced through the internal IRP process with the force of binding
arbitration and, if necessary, further backed through judicial proceedings."

Add:

"In circumstances where the Bylaws provide for the resolution of
disputes between ICANN and other parties through the IRP process, the
CMSM will also have the ability to require ICANN to enter into the IRP
process and abide by its outcome, should it not do so voluntarily. This
power to require ICANN to abide by its Bylaws arises automatically from
its status as a member of the corporation and can, if necessary, be
further backed through judicial proceedings."

I believe many people who have been waiting for the outcome of the CCWG
will be looking for this assurance.

If the lawyers wish to wordsmith my text, that's fine, but it needs to
reflect this basic capability.

Malcolm.


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