[CCWG-ACCT] Townhall meeting follow-up

[Malcolm Hutty]

On 22/06/2015 17:52, Seun Ojedeji wrote:
> - Enforceability solutions other than membership:
> Considering the complications relating to the various membership models
> that has been suggested, there is obvious need to consider what is
> achievable within the current structure and i think everything is
> achievable except enforceability. 

I completely agree with David McAuley's reply on this point.

Unfortunately, if you achieve "everything except enforceability", you
achieve nothing more than a clarification of your request. You do not
achieve accountability, only a clear statement of what you would like
ICANN to do. The decision rests elsewhere.

> So it seem to me that we will already have some enforceability without
> actually requiring membership since an organisation board is required to
> obey/comply with its bylaw. So if the bylaw says; before you can do xyz,
> it needs to go through abc process, why would the board not follow/obey
> those direction as defined in the bylaw?

There are many reasons why things go wrong in this world. But I do not
want to suggest anything you may find fanciful or improbable or, worse,
that could be interpreted as attacking our honourable current Board members.

So for now, let's just say that the Board might believe they were
following the bylaws even if they were not. It is possible to err.

Beyond that though, is the problem Becky identified earlier: it seems
you are mistaken when you say that an organisation's board is required
to obey/comply with its bylaws. We have been told that the Board of an
organisation with no members has a fiduciary duty to the company that
takes precedence over the Bylaws: if the Board decides that it is in the
best interests of the corporation to defy the bylaws, then defying them
is their legal duty. Only by creating a membership (whether through
Empowered SOs, UAs, Open Membership, or some other approach) can we
raise up the bylaws to something the Board must honour in the way you
assume they already must.

Incidentally, I don't blame you at all for not realising this: I didn't
either, and was quite surprised to be told it. But the legal advice
being what it is, we must act accordingly.


-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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