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

[Burr, Becky]

Re my previous comment:

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.)
To Kavouss – my comment is simply a restatement of applicable law, and how the Courts in the US would interpret the Board’s obligations in the Bylaws.   I was not taking any position on whether this is good, bad, desirable, not, etc.

To Chris re infinite regress.  Ultimately, yes.

On the question of IRP/arbitration v. court, I am now quite confident that as a matter of law we should be able to require members to resolve disputes – including disputes related to breach of charitable trust/fiduciary duty – through the IRP.  There are no guarantees in life, however, and courts in California – just like courts anywhere in the world – sometimes do surprising things.  But putting aside some real corner cases, the Federal Arbitration Act, as interpreted by the US Supreme Court, is increasingly deferential to properly crafted choice of forum provisions in contracts, including bylaws in company/shareholder/member disputes.

So we should take the “endless litigation” and decisions by California courts out of the debate on the “voluntary/cooperative” model vs. the “enforcement/membership” model please.  I know that won’t resolve the debate, but try to focus on other concerns.

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