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

[Dr Eberhard W Lisse]

Dear Co-Chairs,

International law has nothing to do with this. And I think we have
discussed what International law does/is previously.

el

On 2015-06-15 21:11 , Kavouss Arasteh wrote:
> Becky
> Thank you for reply,
> According to all applicable international law every organisation ,
> state, institution  has a Constitution, convention, charter and ,,,, the
> Bylaws is the ICANN charter which governs its activities.
> It is NOT a contract at all . From international customary law the
> definition of contract is quite different from the charter, convention,
> treaty, agreement .
> ICANN community are spread over the whole  world and  should not be
> subordinated to  something which inconsistent with all norms rules .
> Regards
> Kavouss
> 
> Sent from my iPhone
> 
> On 15 Jun 2015, at 20:23, Burr, Becky <Becky.Burr at neustar.biz
> <mailto:Becky.Burr at neustar.biz>> wrote:
> 
>> 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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