[CCWG-ACCT] [Acct-Legal] Fwd: Legal question

Tue Apr 21 16:28:35 UTC 2015

Though you did not indicate any NO..J

It would be good to get similar confirmation from legal. Then this
accountability process would have been much easier ;-)

Cheers!

sent from Google nexus 4
kindly excuse brevity and typos.
On 21 Apr 2015 16:36, "Roelof Meijer" <Roelof.Meijer at sidn.nl> wrote:

>   I might be wrong, but I think Chris is expecting something more like:
>
>       1. Is it correct that a bylaw saying that a combination of those
> SOs and ACs can veto the budget or veto a bylaw change can be drafted and
> put in to the bylaws?
> *YES*
> 2. Is it correct that were there to be such a bylaw and the SOs and ACs
> were to veto the budget or a bylaw change pursuant to that bylaw then the
> Board of ICANN could ignore that veto and that the SOs and ACs could not
> enforce the veto?
> *YES*
> 3. Is it correct that the veto bylaw could be drafted to require binding
> arbitration in the event that the Board refused to follow the SO/AC veto
> and if so would the Board be bound by the arbitration finding?
> *YES*
> 4. Is it correct that a Board spill bylaw could be inserted in to the
> bylaws and if triggered would be enforceable?
> *YES*
>
>
>  Caveat: I am not in any way knowledgeable on this matter, so where I
>  write “YES”, the right answer might be “NO”, where I write “NO”, the
> correct answer might be “YES”
>
>  Best,
>
>  Roelof
>
>   From: List for the work of CCWG-Accountability Legal SubTeam <
> ccwg-accountability5 at icann.org>
> Reply-To: "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org
> >
> Date: dinsdag 21 april 2015 08:02
> To: Chris Disspain <ceo at auda.org.au>
> Cc: "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>,
> Accountability Cross Community <accountability-cross-community at icann.org>
> Subject: Re: [Acct-Legal] [CCWG-ACCT] Fwd: Legal question
>
>   The questions are simple.  The answers may not be....
>
>  Also, it depends on what the lawyers are currently working on.  Further,
> the meeting is in about 13 hours, and I expect (given the time) at least
> 6-8 of those hours will be used for sleep and commuting.  So, it's not a
> lot of time.
>
>  My views are as follows:
>
>  On question 1, I think there may be issues in granting this right via
> bylaw, except to statutory members (and possibly to designators, at least
> where formally denoted as such), but these many not sufficient issues to
> cause the bylaw to be invalid.  If it's found to be invalid in court, then
> it would be unenforceable.  However, I believe that something similar could
> be achieved by contract, which should then be enforceable.
>
>  On question 2, I would say that the Board cannot ignore an action
> mandated by the bylaws without some consequences.  The SOs and ACs as
> currently constituted may not have the necessary legal personhood to pursue
> litigation.  However, this could be reported to the California Attorney
> General, who has broad oversight powers relating to non-profits, and would
> probably be quite interested to hear about a relatively high-profile
> non-profit where the Board was ignoring actions mandated by duly approved
> bylaws.  This could certainly be considered "enforcement," broadly
> speaking.  There may also be other parties with legal personhood that could
> pursue litigation, and other governmental entities (Congress?) that could
> make this an exceedingly difficult choice to sustain.
>
>  On 3, if the bylaw says the Board is bound, they're bound, unless the
> Board were to successfully challenge the validity of the bylaw.  Again, it
> may be possible to achieve this by contract, with fewer questions raised.
> And again, there may be issues in granting this right to parties other than
> members (or possibly formally recognized designators), but those issues may
> not invalidate the bylaw.
>
>  On 4, I think the answers to question 2 apply here as well.
>
>  We can see if counsel agrees with this....
>
>  Greg
> Caveat: not legal advice, not admitted in California
>
> On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo at auda.org.au> wrote:
>
>> Hi León,
>>
>>  Really? They are fairly simple questions. As I said, I can ask them on
>> the call.
>>
>>
>>
>>
>>  Cheers,
>>
>>
>>  Chris
>>
>>  On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía <
>> leonfelipe at sanchez.mx> wrote:
>>
>>  Thanks Greg,
>>
>>  I just want to note that for the short notice it is unlikely we will be
>> able to have answers to feed the discussion in our call tomorrow.
>>
>>
>>  Best regards,
>>
>>
>>  León
>>
>>  El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability
>> Legal SubTeam <ccwg-accountability5 at icann.org> escribió:
>>
>>  I am forwarding Chris Disspain's email into the Legal Sub Team for
>> further consideration.  I will let our counsels respond, should the Legal
>> Sub Team's discussion result in a referral of the questions to counsel.
>>
>>
>>  Greg Shatan
>>
>>  ---------- Forwarded message ----------
>> From: Chris Disspain <ceo at auda.org.au>
>> Date: Tue, Apr 21, 2015 at 12:03 AM
>> Subject: [CCWG-ACCT] Legal question
>> To: Accountability Cross Community <
>> accountability-cross-community at icann.org>
>>
>>
>> Hello All,
>>
>>  I’m not sure if this email should be addressed to the whole group, the
>> legal sub-team or some other. Anyway, I have some questions that I would
>> appreciate answers to from the CCWG’s lawyers. Happy to discuss on the
>> upcoming CCWG call.
>>
>>  Under the current structure of ICANN and its SOs and ACs
>>
>>  1. Is it correct that a bylaw saying that a combination of those SOs
>> and ACs can veto the budget or veto a bylaw change can be drafted and put
>> in to the bylaws?
>>
>>  2. Is it correct that were there to be such a bylaw and the SOs and ACs
>> were to veto the budget or a bylaw change pursuant to that bylaw then the
>> Board of ICANN could ignore that veto and that the SOs and ACs could not
>> enforce the veto?
>>
>>  3. Is it correct that the veto bylaw could be drafted to require
>> binding arbitration in the event that the Board refused to follow the SO/AC
>> veto and if so would the Board be bound by the arbitration finding?
>>
>>  4. Is it correct that a Board spill bylaw could be inserted in to the
>> bylaws and if triggered would be enforceable?
>>
>>
>>
>>  Cheers,
>>
>>
>>  Chris
>>
>>  On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía <
>> leonfelipe at sanchez.mx> wrote:
>>
>>  All,
>>
>>  I am forwarding this document from Counsel for your records and for its
>> relevance for our overall work.
>>
>>
>>  Best regards,
>>
>>
>>  León
>>
>>  Inicio del mensaje reenviado:
>>
>> *Para: *"ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>
>>  *Fecha: *17 de abril de 2015 22:21:36 GMT-5
>>  *De: *List for the work of CCWG-Accountability Legal SubTeam <
>> ccwg-accountability5 at icann.org>
>>  *Asunto: **[Acct-Legal] (no subject)*
>>  *Responder a: *ccwg-accountability5 at icann.org
>>
>>
>>
>>  Dear Legal Sub-Team,  Attached please find revisions to the chart
>> comparing the member and designator approaches  from Sidley and Adler &
>> Colvin as requested.  Please note that in our cover memo we have posed
>> several questions for your consideration.  We have also provided a
>> discussion of some considerations regarding implementation of both
>> approaches.  We are look forward to discussing with CCWG next week.  Kind
>> regards, Holly
>>
>>  *HOLLY J.  GREGORY*
>>
>> * Partner *
>> *Sidley Austin LLP*
>> +1.212.839.5853
>> holly.gregory at sidley.com
>>
>>
>>
>>
>>
>> ****************************************************************************************************
>> This e-mail is sent by a law firm and may contain information that is
>> privileged or confidential.
>> If you are not the intended recipient, please delete the e-mail and any
>> attachments and notify us
>> immediately.
>>
>>
>> ****************************************************************************************************
>>
>>   <Legal Assessment_  Governance Chart.pdf>
>>
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