[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

[parminder]

On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
>
> Thanks Becky,
>
> I think you highlight a key point.
>
> Currently, NTIA and the California Attorney General are the only
> enforcement bodies ensuring ICANN remains committed to its bylaws.
>
> The membership structure would give some of that authority to the
> ICANN community through its existing structures -- the SOs and ACs.
>
> Isn’t that the definition of transitioning the United States
> government (in its various forms) out of its unique role?
>

Being at definitional matters; in my understanding, the definition of
'transitioning the US government (in its various forms) out if its
unique role' is that the US government, and its agencies, have no role
that is not equivalent to that of any other government and its agencies.
That has always been the intent and purpose of the long standing global
demand for getting rid of US's unilateral oversight over ICANN.

A wrong definition of the problem obviously leads to wrong solutions, as
is happening currently with the 'transition process'.

> After NTIA disengages, don’t we want the community to have shared
> authority for enforcement,
>

As you mention in an earlier part of your email, with community you of
course mean 'ICANN community'. Whatever be the intention of the 'ICANN
community', even NTIA's announcement asked for the oversight to pass to
'global multistakeholder community' and not to the 'ICANN community'. 
Now if the 'ICANN community' being in charge of running the transition
process appropriates that new (partly) transitioned oversight role to
itself, it is perhaps an understandable human failing, but that would
normally be called as an illegitimate capture.

parminder


> rather than leaving it to the California Attorney General alone?
>
> Regards,
> Keith
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *Burr, Becky
> *Sent:* Friday, June 12, 2015 11:07 AM
> *To:* Roelof Meijer; Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers
> Chart, Voluntary Model
>
>  
>
> Roelof,
>
> shi
>
> As I understand it, Courts view the bylaws as a contract between a
> corporation and its members/shareholders.  If ICANN has no members,
> the bylaws are not a contract with anyone, so the only party with
> authority to enforce would be the Attorney General.  (As discussed
> elsewhere, this is extremely unlikely to happen outside of a
> fraud/corruption situation.)
>
>  
>
> The fact that members of SO’s are legal entities doesn’t change this.
>  Unless they are members of ICANN, they are not a party to the bylaws
> “contract.”
>
>  
>
> B
>
> J. Beckwith Burr
>
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932  Mobile: 
> +1.202.352.6367  / becky.burr at neustar.biz
> <mailto:becky.burr at neustar.biz> / www.neustar.biz <http://www.neustar.biz>
>
>  
>
> *From: *Roelof Meijer <Roelof.Meijer at sidn.nl
> <mailto:Roelof.Meijer at sidn.nl>>
> *Date: *Friday, June 12, 2015 at 8:18 AM
> *To: *Accountability Community
> <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart,
> Voluntary Model
>
>  
>
> Dear all, and especially dear legal colleagues,
>
>  
>
> The memo states:
>
>  
>
> "If there were a dispute between ICANN and an SO/AC, the parties could
> agree to an IRP and binding arbitration, but there would be no
> mechanism to restrain ICANN from acting contrary to these decisions,
> nor would there be a mechanism to challenge an arbitration decision
> that exceeded the scope of authority of the arbitration panel, outside
> an unlikely, independent intervention by the California Attorney
> General. "
>
>  
>
> I understand that the SO/AC’s, not being legal entities, cannot take
> legal action to enforce. However, does that really equal "no mechanism
> to restrain ICANN from acting contrary to these decisions”?
>
>  
>
> Most members of SO’s are legal entities, many members of AC’s are too,
> couldn’t those members, being affected parties, individually or
> collectively take legal action?
>
>  
>
> Alternatively, I would assume that before the ultimate step of talking
> legal action against ICANN, the community will have escalated through
> its powers and thus has completed the procedure to recall the entire
> board. The power to recall the entire board will have to be combined
> with the power to in one way or another appoint an interim board. So,
> the community, through due process, recalls the board. The board, in
> contradiction with the bylaws, refuses “to go”. The community has
> recalled the board and thus, through the defined process (also in the
> bylaws), appoints an interim board. According to the bylaws, this
> interim board is now the legal representative of ICANN. And can take
> the required legal action (if necessary) to force the “old” board to
> go away and get lost.
>
>  
>
> Would one of these two work?
>
>  
>
> Best,
>
>  
>
> Roelof Meijer
>
>  
>
> *From: *<Hofheimer>, "Joshua T." <jhofheimer at sidley.com
> <mailto:jhofheimer at sidley.com>>
> *Date: *donderdag 11 juni 2015 06:09
> *To: *"ccwg-accountability5 at icann.org
> <mailto:ccwg-accountability5 at icann.org>"
> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
> *Cc: *Sidley ICANN CCWG <sidleyicannccwg at sidley.com
> <mailto:sidleyicannccwg at sidley.com>>, ICANN-Adler
> <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>
> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
>
>  
>
> Dear Legal Sub-Team,
>
>  
>
> Further to the CCWG request on the call last Friday, attached is a
> memo revising the summary chart describing the viability of the
> enumerated powers under the three models – Member model, Designator
> Model and Voluntary Model.  We also explore the impact of not having
> the SO/ACs organized legal persons to represent their interests.
>
>  
>
> Cheers,
>
> Josh
>
> *JOSHUA* *HOFHEIMER  *
>
> Sidley Austin LLP
> +1.213.896.6061 (LA direct)
> +1.650.565.7561 (PA direct)
> +1.323.708.2405 (cell)
> jhofheimer at sidley.com <mailto:jhofheimer at sidley.com>
> www.sidley.com
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> AUSTIN LLP*
>
>  
>
>  
>
> *From:*ccwg-accountability5-bounces at icann.org
> <mailto:ccwg-accountability5-bounces at icann.org>
> [mailto:ccwg-accountability5-bounces at icann.org] *On Behalf Of *Hilton,
> Tyler
> *Sent:* Monday, June 08, 2015 8:29 PM
> *To:* ccwg-accountability5 at icann.org
> <mailto:ccwg-accountability5 at icann.org>
> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
>
>  
>
> Dear Legal Sub-team,
>
>  
>
> Attached please find a memo responding to the list of questions from
> the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
>
>  
>
> Best,
>
>  
>
> *TYLER* *HILTON*
> Associate
>
> Sidley Austin LLP
> 555 West Fifth Street
> Los Angeles, CA 90013
> +1.213.896.6130
> thilton at sidley.com <mailto:thilton at sidley.com>
> www.sidley.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvLB6W-cfwGyV4&e=>
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> AUSTIN LLP*
>
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