[CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Alan Greenberg
alan.greenberg at mcgill.ca
Tue Jun 16 02:09:33 UTC 2015
This tends to pretty well correlate with the
position that most in the ALAC have supported.
Alan
At 15/06/2015 03:03 AM, 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
><<mailto:kdrazek at verisign.com>kdrazek at verisign.com>
>Date: zondag 14 juni 2015 03:52
>To: Chris Disspain <<mailto:ceo at auda.org.au>ceo at auda.org.au>
>Cc:
>"<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org"
><<mailto:accountability-cross-community at icann.org>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
><<mailto:ceo at auda.org.au>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
>>><<mailto:paul.rosenzweig at redbranchconsulting.com>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 <<mailto:ceo at auda.org.au>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
>>>><<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com>kdrazek at 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:
>>>><https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>accountability-cross-community-bounces at icann.org
>>>>[<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@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 /
>>>><https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz>becky.burr at neustar.biz
>>>>/ <http://www.neustar.biz/>http://www.neustar.biz
>>>>
>>>>
>>>>From: Roelof Meijer
>>>><<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>Roelof.Meijer at sidn.nl>
>>>>Date: Friday, June 12, 2015 at 8:18 AM
>>>>To: Accountability Community
>>>><<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>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."
>>>><<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>jhofheimer at sidley.com>
>>>>Date: donderdag 11 juni 2015 06:09
>>>>To:
>>>>"<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>ccwg-accountability5 at icann.org"
>>>><<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>ccwg-accountability5 at icann.org>
>>>>Cc: Sidley ICANN CCWG
>>>><<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>sidleyicannccwg at sidley.com>,
>>>>ICANN-Adler
>>>><<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>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)
>>>><https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>jhofheimer at 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=>
>>>> SIDLEY AUSTIN LLP
>>>>
>>>>
>>>>
>>>>From:<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>ccwg-accountability5-bounces at icann.org
>>>>[<https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>mailto:ccwg-accountability5-bounces at icann.org]
>>>>On Behalf Of Hilton, Tyler
>>>>Sent: Monday, June 08, 2015 8:29 PM
>>>>To:
>>>><https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>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
>>>><https://e-aj.my.com/x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>thilton at 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=>
>>>> SIDLEY AUSTIN LLP
>>>>
>>>>
>>>>
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>>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
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