[WP1] Inherent powers of CMSM

[Malcolm Hutty]

On 28/07/2015 19:40, Samantha Eisner wrote:
> Malcolm, do I understand your statement to mean that the member will
> have standing to resort to the IRP?  

That is a separate issue.

As it happens, yes, Section 4 as currently drafted does give the CMSM
standing before the IRP. But that's not the issue I'm discussing.

I am discussing the scenario where someone who is entitled to do so
tries to launch an IRP, and ICANN says that in this case it refuses to
enter into binding arbitration. Or, having entered into such arbitration
and lost, ICANN disregards the result.

The CMSM must stand ready to require ICANN to enter the IRP and to abide
by its outcome, by relying on its inherent power to require ICANN to
adhere to its own corporate documents. When it gets as far as a court, I
believe this is called a derivative action, but I may be mistaken.

As the IRP is the underpinning of all our most significant
accountability work, ICANN must never be allowed to refuse to enter it,
or to disregard it. So the threshold for the CMSM applying corrective
action should be as simple and lightweight as possible, not the "ensure
it can never be used" threshold chosen for other statutory powers.

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            Malcolm Hutty | tel: +44 20 7645 3523
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