[CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
parminder
parminder at itforchange.net
Mon Jun 15 15:06:05 UTC 2015
On Monday 15 June 2015 07:55 PM, Seun Ojedeji wrote:
> +1 to Avri. By the way, i am not sure so many still insist on going
> the membership route. Maybe we need to check that row call again. From
> the few comments to PC that i have read i think those that supported
> membership route had quite a number of "but"/reservations about it.
>
> Membership route would most likely open up can of worms that the
> community may not be prepared for. We create so much firepower for
> ourselves and forget that its use may ultimately affect us.
There was a certain unclear 'us' in Avri's email, while I was still
pondering over it, I see Seun's email with a heavily reinforced 'us'...
Who is this 'us', which it seems many here take for granted, and have
not questioned even. If there is a code word that I have missed, I will
like to enlightened.
parminder
> The more i think about the membership route within a structure like
> ICANN, the more unrealistic it seem for it to be efficient.
>
> Regards
>
> On Mon, Jun 15, 2015 at 3:02 PM, Avri Doria <avri at acm.org
> <mailto:avri at acm.org>> wrote:
>
> Hi,
>
> I agree with those who are argue that there is far greater power
> in the
> Cooperative Model, aka Sidley's misnamed voluntary model, we currently
> have than people are acknowledging. This is especially so with the
> many
> improvements we have been discussing.
>
> As we have seen on occasion when enough of us work together, the
> multistakeholder process can force the Board/Staff's hand. I think
> people exagerate the power exercised by the NTIA and its threat of
> contract non-renewal. Also remember that we will still have a
> possible RFP event; the IANA Functions Review and the Separation
> Cross
> Community WG can serve as the same forcing function if that is the
> only
> sort of thing that convinces corporate ICANN.
>
> Not only will be able to use the combined stakeholder power to force
> issues as we done before, we will still have the whole pro
> intergovernmental crowd waiting for us to fail so that they save
> the day
> at the ITU or some other IGO. That should be enough to inspire
> us. If
> it doesn't, I do not see how something dragging through the courts for
> years will make much of a difference.
>
> As I have argued before, I think the whole membership route offers
> first
> a set of delays while we try to agree on it with the Board, and then
> allows for a new set of accountability holes we have yet to fully
> explore or discover - my greatest concern. I believe we are rushing
> into someting I think we just don't need for the transition.
>
> But if we go with a membership model as so many insist, I believe that
> only one where the SO or AC is the UA should be considered.
>
> avri
>
>
> On 15-Jun-15 03:03, Roelof Meijer wrote:
> > Keith,
> >
> > I wonder if with "If a future ICANN Board were to jump the
> tracks, the
> > community will no longer have the NTIA backstop. Without legal
> > enforceability, the community would have to trust future ICANN
> Boards
> > and trust future California Attorney Generals. “ you’re not
> > oversimplifying or over-contrasting between the situation with
> legal
> > enforceability and without.
> >
> > I think that in a situation where the board “jump the track”, the
> > community ultimately goes through its process to spill the board and
> > the board refuses to go, that board would be paralyzed in all ways,
> > face shame and defamation individually on a global scale and would
> > ruin their personal careers completely.
> > They would dimply not do that.
> >
> > Best,
> >
> > Roelof
> >
> > From: <Drazek>, Keith Drazek <kdrazek at verisign.com
> <mailto:kdrazek at verisign.com>
> > <mailto:kdrazek at verisign.com <mailto:kdrazek at verisign.com>>>
> > Date: zondag 14 juni 2015 03:52
> > To: Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au> <mailto:ceo at auda.org.au
> <mailto:ceo at auda.org.au>>>
> > Cc: "accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> > <mailto: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>
> > <mailto:accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>>
> > Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
> > Voluntary Model
> >
> > Chris,
> >
> > NTIA's current enforcement powers are indirect but very real.
> Through
> > its existing ability to re-bid the IANA Functions contract, NTIA
> > ensures that ICANN and its Board of Directors remain true to its
> > bylaws. That unique role is set to change.
> >
> > If a future ICANN Board were to jump the tracks, the community
> will no
> > longer have the NTIA backstop. Without legal enforceability, the
> > community would have to trust future ICANN Boards and trust future
> > California Attorney Generals. Why shouldn't we instead trust the
> > global multi-stakeholder community itself?
> >
> > If a future ICANN community were to try to spill the board, wouldn't
> > we want that consensus decision to be legally enforceable? Or do we
> > want to allow a future Board to tell the community it was wrong and,
> > claiming fiduciary responsibility to the corporation, reject the
> decision?
> >
> > Ultimately, we're deciding whether authority should rest with the
> > ICANN Board and the California AG, or with the ICANN community
> and the
> > California AG.
> >
> > I'm in favor of the latter.
> >
> > Regards,
> > Keith
> >
> >
> > On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo at auda.org.au
> <mailto:ceo at auda.org.au>
> > <mailto:ceo at auda.org.au <mailto:ceo at auda.org.au>>> wrote:
> >
> >> Hi Paul,
> >>
> >> I was specifically responding to Keith’s point so hardly a
> non-sequitur.
> >>
> >>
> >>
> >> Cheers,
> >>
> >>
> >> Chris
> >>
> >>
> >>> On 14 Jun 2015, at 02:29 , Paul Rosenzweig
> >>> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
> >>> <mailto:paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>> wrote:
> >>>
> >>> Chris
> >>>
> >>> We need more formal powers for the community because much of the
> >>> power of the NTIA was informal. The only thing that could replace
> >>> the NTIA precisely would be the NTIA. I get that you don't
> like the
> >>> membership model. But asking why a non-governmental solution is
> >>> different from a governmental one is just a non sequitur.
> >>>
> >>> Paul
> >>>
> >>> --
> >>> Sent from myMail app for Android
> >>>
> >>> Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain
> >>> <ceo at auda.org.au <mailto:ceo at auda.org.au> <mailto:ceo at auda.org.au
> <mailto:ceo at auda.org.au>>>:
> >>>
> >>> Greetings All,
> >>>
> >>> 1. on Becky’s comment below: if that is correct then
> surely the
> >>> same applies to the relationship between the SO/AC and its
> >>> Unincorporated Association. If a court cannot enforce a Board
> >>> spill by the SOs/ACs then a court can also not make the UA do
> >>> what the SO or AC wants. Can it?
> >>>
> >>> 2. on Keith’s comment below: How does the NTIA currently have
> >>> powers of enforcement over ICANN outside of matters covered in
> >>> the IANA contract? If NTIA was/is prepared to enter into an
> >>> Affirmation of Commitment with ICANN which can be
> terminated by
> >>> either party and is not legally enforceable, why should we
> >>> insist on a higher standard?
> >>>
> >>>
> >>>
> >>> Cheers,
> >>>
> >>>
> >>> Chris
> >>>
> >>>
> >>>> On 13 Jun 2015, at 02:05 , Drazek, Keith
> <kdrazek at verisign.com <mailto:kdrazek at verisign.com>
> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com
> <http://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>>>
> >>>> 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?
> >>>>
> >>>> After NTIA disengages, don’t we want the community to have
> >>>> shared authority for enforcement, 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>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org
> <http://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>>
> [mailto:accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org
> <http://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@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
> <tel:%2B1.202.352.6367> / becky.burr at neustar.biz
> <mailto:becky.burr at neustar.biz>
> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz
> <http://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz>>
> / http://www.neustar.biz
> >>>> <http://www.neustar.biz/>
> >>>>
> >>>>
> >>>>
> >>>> *From: *Roelof Meijer <Roelof.Meijer at sidn.nl
> <mailto:Roelof.Meijer at sidn.nl>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl
> <http://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@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>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org
> <http://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@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>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com
> <http://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>>
> >>>> *Date: *donderdag 11 juni 2015 06:09
> >>>> *To: *"ccwg-accountability5 at icann.org
> <mailto:ccwg-accountability5 at icann.org>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org
> <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>"
> >>>> <ccwg-accountability5 at icann.org
> <mailto:ccwg-accountability5 at icann.org>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org
> <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>>
> >>>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg at sidley.com <mailto:sidleyicannccwg at sidley.com>
> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com
> <http://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>>,
> >>>> ICANN-Adler <ICANN at adlercolvin.com
> <mailto:ICANN at adlercolvin.com>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com
> <http://e-aj.my.com/compose/?mailto=mailto%3aICANN@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 <tel:%2B1.213.896.6061> (LA direct)
> >>>> +1.650.565.7561 <tel:%2B1.650.565.7561> (PA direct)
> >>>> +1.323.708.2405 <tel:%2B1.323.708.2405> (cell)
> >>>> jhofheimer at sidley.com <mailto:jhofheimer at sidley.com>
> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com
> <http://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
> >>>> http://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=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=>
> >>>>
> >>>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
> >>>>
> <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=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=>
> *SIDLEY
> >>>> AUSTIN LLP*
> >>>>
> >>>>
> >>>>
> >>>>
> >>>> *From:*ccwg-accountability5-bounces at icann.org
> <mailto:ccwg-accountability5-bounces at icann.org>
> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org
> <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>>
> [mailto:ccwg-accountability5-bounces at icann.org
> <mailto:ccwg-accountability5-bounces at icann.org>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org
> <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@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>
> >>>>
> <x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org
> <http://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@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 <tel:%2B1.213.896.6130>
> >>>> thilton at sidley.com <mailto:thilton at sidley.com>
> >>>> <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com
> <http://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>>
> >>>> http://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=>
> >>>>
> >>>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
> >>>>
> <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=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=>
> *SIDLEY
> >>>> AUSTIN LLP*
> >>>>
> >>>>
> >>>>
> >>>>
> >>>> ****************************************************************************************************
> >>>> 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
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> >>>> and any attachments and notify us
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> >>>>
> >>>>
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> >>>>
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> --
> ------------------------------------------------------------------------
>
> /Seun Ojedeji,
> Federal University Oye-Ekiti
> web: http://www.fuoye.edu.ng
> Mobile: +2348035233535
> //alt email:<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
> <mailto:seun.ojedeji at fuoye.edu.ng>/
>
> The key to understanding is humility - my view !
>
>
>
>
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