[CCWG-Accountability] Regarding Non-profit and public-benefit legal structure
Eric Brunner-Williams
ebw at abenaki.wabanaki.net
Thu Jan 8 03:51:44 UTC 2015
On 1/7/15 12:36 PM, Greg Shatan wrote:
> It seems a little early in the process to definitively state what the
> powers of the Members will be and won't be.
I'd like to see the eligibility (to become a member) or eligibilies
(assuming classes of members) defined prior to, or at the same time as,
defining the "powers of members".
Eric Brunner-Williams
Eugene, Oregon
> Even the document you link to has a broader list of Members' potential
> powers:
>
> ·Appoint members of /Affirmation/ review teams
>
> ·Review any board decision. Non-approval would send decision back to
> bottom-up policy development process.
>
> ·[Alt:] Refer any board decision to an _independent_ review panel.
> The CWG believes this should be binding for IANA functions.
>
> ·Approve changes to ICANN bylaws or Articles, with 2/3 majority
>
> ·Approve annual proposed ICANN budget [vote threshold?]
>
> ·Recall one or all ICANN Board members [vote threshold?]
>
>
> This is not to say it's completely "open season" on empowering the
> Membership; but we shouldn't cut off discussion at this very early stage.
>
> Greg
>
>
> On Wed, Jan 7, 2015 at 2:08 PM, Steve DelBianco
> <sdelbianco at netchoice.org <mailto:sdelbianco at netchoice.org>> wrote:
>
> Some clarifications about the Member concept, as described on the
> Work Area 2 inventory
> <https://community.icann.org/pages/viewpage.action?pageId=51416471>:
>
>
> Members are not outside of ICANN — they are designated by
> their respective AC/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 <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>
> Date: Wednesday, January 7, 2015 at 12:45 PM
> Cc: "accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>"
> <accountability-cross-community at icann.org
> <mailto: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
> <paul.rosenzweig at redbranchconsulting.com
> <mailto: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 at 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
> <mailto:mathieu.weill at afnic.fr>]
>
> *Sent:* Wednesday, January 7, 2015 9:04 AM
> *To:* accountability-cross-community at icann.org
> <mailto: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
> <gregshatanipc at gmail.com <mailto: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
> <Bruce.Tonkin at melbourneit.com.au
> <mailto: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
>
> "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
>
> "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
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
>
> _______________________________________________
>
> Accountability-Cross-Community mailing list
>
> Accountability-Cross-Community at icann.org <mailto:Accountability-Cross-Community at icann.org>
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
> --
>
> *****************************
>
> Mathieu WEILL
>
> AFNIC - directeur général
>
> Tél:+33 1 39 30 83 06 <tel:%2B33%201%2039%2030%2083%2006>
>
> mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
>
> Twitter : @mathieuweill
>
> *****************************
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150107/b09d7620/attachment.html>
More information about the Accountability-Cross-Community
mailing list