[CCWG-Accountability] Regarding role of Board directors
Kavouss Arasteh
kavouss.arasteh at gmail.com
Mon Jan 12 09:00:32 UTC 2015
Dear Malcolm,
Dear Keith
Dear All
Thank you very much for your contributions.
First I will comment on Malcolm,s position
He indicated
Quote
*"I would say that it is the responsibility of the Board to find ways to
reconcile the community consensus with their legal obligations. Normally
this is done through a combination of engagement with the community (so as
to relieve unrealistic or unachievable expectations) and creative
approaches to implementation (so that the objectives of the community are
met in a manner compatible other obligations, which may not be the
implementation originally envisaged)."*
Unquote
Kavouss Comment
1.Since currently ICANN functions , amongs others, Under the Incorporation
Articles and Californian Laws and Rules ,it is incumbent to it to respect
those Laws and Rules, thus the pressure or the burden would be shifted to
the community. Consequently ,the argument is not a balanced approach. This
inconsistency between the communit6y consensus outcome and those Laws and
Rules was raised before and is not yet resolved
2. Malcolm also said
Quote
*"These twin duties are, in my view, *both* fundamental. The latter should
not be allowed to become an excuse for the Board to go its own way, in
defiance of the community"*
Unqupote
Comment from Kavouss
I fully agree with your analysis
3. Malcolm also POINTED OUT
Quote
"Ultimately, if a Board member believes they are incapable of satisfying
all their duties, then their responsibility is to resign their office"
Unquote
Comment from Kavouss
Here also I fully agree with the analysis .
4. The last part of Malcolms opinion is
Quote
*"The radical idea would be to propose that directors are entitled, in the
final analysis, to advance their own preferences in defiance of the
community they are appointed to serve"*
Unquote
Comment from Kavouss
*Here I disagree with the analysis*
Now on the Keith's position
Quote
"The radical idea would be to propose that directors
> are entitled, in the final analysis, to advance their own preferences, OR
THE PREFERENCES OF ICANN'S LEGAL COUNSEL, in"
Unquote
Comment from Kavouss
*Here also I disagree with the amendment made by Keith*
Now on the Alan's position
Quote
*"But I "hope" that the answer is "it depends". I would like to think that
the risk of being sued and the potential liabilities (and the chances of
losing!) would be weighed against the ICANN Mission, Core Values and its
Articles of Incorporation which includes the phrase "The Corporation shall
operate for the benefit of the Internet community as a whole".*
Unquote
Comment from Kavouss
It is not clear whether Alan in favour of Malcolm's views or against it
The argument he made is a double face argument.,on the one hand he
expressed worries about being sued and ,on the other hand, he refers
to *A**rticles
of *incorporation which includes the phrase "the corporation shall operate
for the benefit of the internet community as a whole"
There seems to be a need to clarify his position i.e in favour or anaist
Malcolm’s views
Tks
Kavouss
2015-01-12 9:24 GMT+01:00 Edward Morris <emorris at milk.toast.net>:
> I would like to strongly support Keith's proposal that we 1) request the
> ability to consult legal expert in California corporate law (as opposed to
> strictly nonprofit corporate law, as the new Benefits Corporation is a
> vehicle we may want to consider) and 2) we ensure the expert is not
> affiliated in any way with ICANN legal or any legal contractor, such as
> Jones Day, which has a a historical relationship with ICANN. To the extent
> any participant can or would be allowed to be involved in the process by
> which such an expert is selected, I certainly would like to be part of any
> such effort.
>
>
>
> -----Original Message-----
> From: "Drazek, Keith" <kdrazek at verisign.com>
> To: Adebunmi AKINBO <akinbo.adebunmi at gmail.com>
> Cc: "accountability-cross-community at icann.org" <
> accountability-cross-community at icann.org>
> Date: Mon, 12 Jan 2015 04:57:27 +0000
> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
>
> In response to Akinbo's question below, I would like to ask the Co-Chairs
> to add a discussion of expert legal advice to Tuesday's agenda.
>
> I believe the CCWG will likely need our own subject matter expert in
> California not-for-profit corporate law.
>
> It's probably time we discuss how best to secure these services and to
> ensure that individual is in the service of the CCWG and the community, so
> we are not relying only on ICANN's interpretations.
>
> Thanks,
> Keith
>
> On Jan 11, 2015, at 3:32 AM, "Adebunmi AKINBO" <akinbo.adebunmi at gmail.com>
> wrote:
>
>
> +1 DelBianco = So, when the Board is confronting a community consensus
> to take an action that could put the corporation at risk of a lawsuit … how
> do you believe a board member is obliged to react?
>
> On the above, can we seek a legal opinion?
> Its important to address this scenario.
>
> This can happen at anytime in the lifetime of ICANN.
> -Akinbo.
>
>
>
> On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg at mcgill.ca>
> wrote:
>>
>> I am not an ICANN Board Member. I am not a lawyer. I am not a California
>> law expert.
>>
>> But I "hope" that the answer is "it depends". I would like to think that
>> the risk of being sued and the potential liabilities (and the chances of
>> losing!) would be weighed against the ICANN Mission, Core Values and its
>> Articles of Incorporation which includes the phrase "The Corporation shall
>> operate for the benefit of the Internet community as a whole".
>>
>> Alan
>>
>> At 10/01/2015 08:40 PM, Steve DelBianco wrote:
>>
>>
>> Thanks for the larger context around that bylaws provision, Bruce. But
>> if we are considering whether the bylaws refer to ‘ICANN’ as the
>> corporation or the *community*, see ICANN’s own Management Operating
>> Principles (2008 link
>> <https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf>,
>> p. 5):
>> "The third and perhaps most critical point of tension is between the
>> accountability to the participating community to perform functions in
>> keeping with the expectations of the community and the corporate and legal
>> responsibilities of the Board to meet its fiduciary obligations. The
>> ultimate legal accountability of the organization lies with the Board, not
>> with the individuals and entities that make up the ICANN community.â€
>>
>> So, when the Board is confronting a community consensus to take an action
>> that could put the corporation at risk of a lawsuit … how do you bellieve a
>> board member is obliged to react?
>>
>>
>> From: Robin Gross < robin at ipjustice.org>
>> Date: Saturday, January 10, 2015 at 8:10 PM
>> To: Bruce Tonkin < Bruce.Tonkin at melbourneit.com.au>
>> Cc: " accountability-cross-community at icann.org" <
>> accountability-cross-community at icann.org>
>> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
>>
>> Thanks for the info, Bruce. It is worth pointing out that regardless of
>> how those bylaws are interpreted, under California law, nonprofit board
>> members owe a legal duty of loyalty to the corporation and there isn't
>> anything that this working group can do change California corporations law
>> and the legal duty of loyalty each board member owes to the corporation (as
>> a corporation, yes, not staff). This is where a tension comes in for
>> trying to do public governance via a private corporation - the two concepts
>> weren't "built" for the other, so there are gaps and some issues as a
>> result. I think this is an issue our group should explore.
>>
>> Best,
>> Robin
>>
>>
>> On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
>> Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of
>> directors to ICANN the Corporation:
>> Directors shall serve as individuals who have the duty to act in what
>> they reasonably believe are the best interests of ICANN and not as
>> representatives of the entity that selected them, their employers, or any
>> other organizations or constituencies.
>> I have often heard you refer to that specific clause in the bylaws
>> over the past year. I think it is worth understanding it a little
>> more. I personally believe that the intent of putting this clause in the
>> bylaws is that several Board members are appointed to the Board from a
>> specific stakeholder group, and this makes it clear that Board members need
>> to act on behalf of all stakeholders not just the stakeholder group that
>> appointed them. So from my perspective it is a higher level of
>> accountability than simply being accountable to the group that appointed
>> them. We certainly make that clear as new directors join the Board. The
>> clause does not mean that somehow a Board director is now accountable to
>> the staff in the organization rather than the "ICANN community". For
>> those appointed to the Board by the nominating committee - I think it is
>> already clear to them that they represent stakeholders as a whole, as they
>> go through a rigorous interview process in front of the whole nominating
>> committee. In my experience as Board director, Boards in general operate
>> on behalf of their stakeholders - these stakeholders could be the general
>> public, shareholders, or members. Under its articles of incorporation,
>> ICANN is structured to act on behalf of the global public interest - i.e.
>> the general public. In addition to acting on behalf of stakeholders, a
>> board is also accountable to govern an organization in accordance with the
>> law. This to me is the "corporate" obligation that you often refer.
>> This includes ensuring that the organization can meet its financial
>> commitments, ensure the staff have a safe workplace, ensure there are
>> financial controls to stop fraud, ensure the organization complies with any
>> contracts it has entered into etc. Directors of ICANN can be held
>> personally liable under law if they are negligent. After the ATRT1
>> review, a set of governance guidelines were established to make this
>> clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en From
>> the section on the role of directors: "The fundamental responsibility of
>> Directors (as defined below) is to exercise their business judgment to act
>> in what they reasonably believe to be the best interests of ICANN and in
>> the global public interest, taking account of the interests of the Internet
>> community as a whole rather than any individual group or interest" "It
>> is the duty of the Board to oversee management's performance to ensure that
>> ICANN operates in an effective, efficient and ethical manner. The Board
>> will also be responsible for overseeing the development of ICANN's short,
>> medium and long-term strategic plans, ensuring that they will result in
>> sustainable outcomes, and taking account of the critical interdependencies
>> of financial, human, natural, manufactured, social and intellectual
>> capitals." "Some of the Board's key responsibilities are to ensure that
>> ICANN's ethics are managed effectively, that ICANN as a whole (as well as
>> individual Board and staff members) operates pursuant to the highest
>> ethical standards, that ICANN complies with applicable laws, and that ICANN
>> considers adherence to best practices in all areas of operation." The
>> bylaws could certainly be enhanced to incorporate the notion in the
>> Governance Guidelines that Board directors are accountable to the Internet
>> community as a whole. Regards, Bruce Tonkin
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>
>
>
> --
> *Evang. Akinbo A. A. Cornerstone, Nigeria.*
> +2348064464545, +2348089118151 | 2BAC511D.
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>
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>
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>
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