[CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Alan Greenberg
alan.greenberg at mcgill.ca
Wed Jan 7 20:09:34 UTC 2015
Steve:
Not all Board decisions are related to policy or
within the scope of policy development processes
or even the sole responsibility of an SO (which
is currently the only place that policy
development occurs). Use of the word "back"
implies that is where all decisions start - again not the case.
I also would strongly argue against the inclusion
of "Constituencies". With an upper case C, they
are the sole construct of the GNSO, and with a
lower case C the term is close to meaningless.
Also, it is a mechanism by which a SG could
create Constituencies and de facto increase their representation.
I would argue for a methodology not unlike that
used in the Stewardship CWG and this CCWG,
allocating a specific number of seats to each
AC/SO and allow then to sub-allocate as
appropriate to their internal structure.
Alan
At 07/01/2015 02:08 PM, Steve DelBianco wrote:
>Some clarifications about the Member concept, as
>described on the
><https://community.icann.org/pages/viewpage.action?pageId=51416471>Work
>Area 2 inventory:
>Members are not outside of ICANN — they are
>designated by their respective
>AAC/SO/Constituencies. So not sure there is
>much risk that a majority of these Members could be captured.
>Members would be given only these enumerated powers:
>Appoint members of Affirmation Review teams
>Review [and perhaps reverse] any board
>decision. Non-approval would send decision back
>to bottom-up policy development process.
>Approve proposed changes to ICANN Bylaws or Articles of Incorporation.
>Approve annual proposed budget
>
>
>Members could not re-write contracts or budgets
>or bylaws. If a bottom-up consensus process
>generated a bylaws change that was rejected by
>the board, the Members could reverse that decision, however.
>
>
>Steve DelBianco
>
>From: Greg Shatan <<mailto:gregshatanipc at gmail.com>gregshatanipc at gmail.com>
>Date: Wednesday, January 7, 2015 at 12:45 PM
>Cc:
>"<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org"
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Subject: Re: [CCWG-Accountability] Regarding
>Non-profit and public-benefit legal structure
>
>I would not rush to the conclusion that a
>membership group is per se prone to capture. A
>poorly designed membership group, yes. The
>devil is in the details -- who are the members?
>if they are individuals, who do they represent?
>how do they act? when can they act, and how
>quickly? how many of them are there? what are
>their powers? who is excluded? are there classes
>of members? is voting weighted?
>
>Also, I'm not sure if (or why) the community
>accountability mechanism needs to be "outside"
>(depending on what that means). Members in a
>membership corporation are not really outside,
>unless I am not getting the sense of the word as used here.
>
>As for the dispute resolution mechanism, that
>will depend on the other two factors (among
>other things). If the members have the "last
>word" on something, and the board fails to act,
>binding arbitration (or litigation) would be a
>reasonable step (although some escalation
>mechanisms might be appropriate before getting there).
>
>Greg Shatan
>
>
>On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig
><<mailto:paul.rosenzweig at redbranchconsulting.com>paul.rosenzweig at redbranchconsulting.com>
>wrote:
>I think that the potential for capture of the
>outside member group is the reason that the
>accountability system probably needs to be
>linked to an independent judicial/arbitral
>function to resolve disputes. [Of course that
>institution, too, could be captured
but att
>some point we have to end the “who guards the
>guardians?†question]. And that, in turn
>emphasizes why it is necessary as part of the
>transition to define the Board’s/ICANN’s
>scope of authority. A judicial/arbitral
>function can only resolve disputes and cabin
>capture/abuse if it has an articulated standard
>against which to measure the dispute. In the
>absence of such pre-existing guidance the
>judiciary/arbiter is simply substituting
>his/her/its own judgment for the Board and the
>Community, which is not a good thing.
>
>Hence the bottom line: We need a) an outside
>accountability mechanism representing the
>community; b) an independent dispute resolution
>mechanism; and c) clearly articulated standards
>against which to measure and resolve any dispute
>Paul
>
>From: Mathieu Weill [mailto:mathieu.weill at afnic.fr]
>Sent: Wednesday, January 7, 2015 9:04 AM
>To:
><mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org
>
>Subject: Re: [CCWG-Accountability] Regarding
>Non-profit and public-benefit legal structure
>
>Dear Colleagues,
>Many thanks for this very valuable discussion.
>While it confirms that our initial orientation
>towards the ability to, somehow, oversee the
>Board, is relevant and worth exploring, the
>latest comments (regarding risk of capture)
>highlight that we should also anticipate on the
>accountability of the overseeing mechanism itself.
>If "the community" (through a mechanism yet to
>be determined) oversees Board and staff, can we
>ensure all stakeholders, especially those who
>are less familiar with Icann, that "the
>community", in turn, is accountable (ie has the
>relevant independent checks and balances, review
>and redress mechanisms) ? A significant
>challenge, but I'm confident our group can address that.
>This aspect might, however, need to be addressed
>in our definition of WS1, if there is agreement
>that is a necessary element for the transition to take place.
>Best,
>Mathieu
>
>
>
>Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
>
>I am not interested much in the details,
>interesting as they are :-)-O, but would like to
>pick up on Bruce's last paragraph, because in
>my view, the "membership supervision" is not
>going to help much as it is prone to capture,
>quite the opposite of the accountability we want.
>
>greetings, el
>
>Sent from Dr Lisse's iPad mini
>
>On Jan 7, 2015, at 02:40, Greg Shatan
><<mailto:gregshatanipc at gmail.com>gregshatanipc at gmail.com> wrote:
>
>What Bruce has set forth is close to
>correct. However, I can't help but do a little legal nit-picking.
>
>"Public benefit corporation" is a term used in
>California (among other places) as a term for
>non-profit corporations generally. (In New York
>State, we use the term "not-for-profit
>corporation" to mean basically the same thing as
>a California "public benefit corporation" (and
>we use the term "public benefit corporation" to
>mean something quite different -- a quasi-public
>corporation like the Metropolitan Transport
>Authority).) California public benefit
>corporations are not really "chartered by the
>state" (though New York ones like the MTA are
>chartered by the state). [Wikipedia isn't always a great source....]
>
>In California, public benefit corporations may
>be created with or without members, or may
>convert from member to non-member and vice
>versa. However, a public benefit corporation
>with members is still a public benefit corporation.
>(California also has "mutual benefit
>corporations" which are non-profit but never
>charitable (and are also not
>tax-exempt). Mutual benefit corporations are
>run for the benefit of their members, and not
>for the benefit of the general public.)
>
>The term "member" can also be used to mean
>people (or organizations) who aren't really
>members. For instance, when you become a
>"member" of a museum, you are not becoming a
>member of the corporation (i.e., what some in
>ICANN-land have termed a "statutory
>member"). These non-statutory "memberships" are
>more for marketing purposes and have no
>governance role. "Statutory members" on the
>other hand, have a role in governance (which can
>vary markedly depending on the by-laws of the particular corporation.
>
>
>Hope this helps.
>
>
>Best regards,
>
>Greg Shatan
>(Speaking for myself, and not giving legal
>advice as I am not a member of the California Bar)
>
>On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin
><<mailto:Bruce.Tonkin at melbourneit.com.au>Bruce.Tonkin at melbourneit.com.au>
>wrote:
>
>Hello Phil,
>
> >> I would envisage the Board having to be
> compliance with all Corporate Governance Codes
> specific to Companies Law in the country of
> incorporation, subject to a community consensus
> override. But what is its corporate status -
> not for profit or for profit - as different codes would apply ?
>The legal status of ICANN is as specified in its articles of incorporation:
>
><https://www.icann.org/resources/pages/articles-2012-02-25-en>https://www.icann.org/resources/pages/articles-2012-02-25-en
>"This Corporation is a non-profit public benefit
>corporation and is not organized for the private
>gain of any person. It is organized under the
>California Non-profit Public Benefit Corporation
>Law for charitable and public purposes. The
>Corporation is organized, and will be operated,
>exclusively for charitable, educational, and
>scientific purposes within the meaning of § 501
>(c)(3) of the Internal Revenue Code of 1986, as
>amended (the "Code"), or the corresponding
>provision of any future United States tax code.
>Any reference in these Articles to the Code
>shall include the corresponding provisions of
>any further United States tax code."
>Also from:
>
><http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation>http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
>"A public-benefit non-profit corporation is a
>type of non-profit corporation chartered by a
>state government, and organized primarily or
>exclusively for social, educational,
>recreational or charitable purposes by
>like-minded citizens. Public-benefit nonprofit
>corporations are distinct in the law from
>mutual-benefit nonprofit corporations in that
>they are organized for the general public
>benefit, rather than for the interest of its members."
>I believe it was deliberately set up as public
>benefit rather than a member organization - to
>avoid the situation where the members become
>limited to say gTLD registries and registrars
>and hence it ends up operating primarily for the
>benefit of the domain name registration industry.
>Any move away from a public-benefit corporation
>to a membership corporation - would need to
>carefully consider how to ensure that the
>members are reflective of the broader Internet
>community and don't become limited to a few
>members as interest in "ICANN" drops over
>time. I.e. a failure scenario of membership
>organisation is what happens to the membership
>base over time and how it can be protected from
>capture. I have seen some membership based
>ccTLDs get into problems when their membership
>becomes dominated by domain name investors for example.
>Regards,
>Bruce Tonkin
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>--
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>
>
>*****************************
>
>
>
>Mathieu WEILL
>
>
>
>AFNIC - directeur général
>
>
>
>Tél: <tel:%2B33%201%2039%2030%2083%2006>+33 1 39 30 83 06
>
>
>
><mailto:mathieu.weill at afnic.fr>mathieu.weill at afnic.fr
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>
>Twitter : @mathieuweill
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