[CCWG-ACCT] Question regarding UAs

[Greg Shatan]

Chris,

That is essentially my understanding as well, except that as noted before a
UA needs two legal persons "associating" with each other in order to exist.


Basically, the UA (acting under the instructions of the "new chair") is the
legal entity that enforces its own bylaws.  No other legal entity is
needed.

Court proceedings would not necessarily be needed if there's a "changing of
the guard." If an old chair "refused to stand aside," the simplest course
of action is for everyone to simply ignore them, as being no longer
legitimate (or conceivably even barking mad).  (Of course, there could
still be court proceedings, e.g., if ICANN or the other Members weren't
recognizing the actions of the UA run by the "new chair" or everyone just
wanted a court order to sort it all out. Conceivably, the barking mad old
chair could also initiate court proceedings, challenging the new chair and
seeking an order that the old chair is still the real chair.  (All of this
litigation is a technical possibility; I tend to doubt that it would ever
happen.)

This probably indicates that each UA should have at least three members, so
there is not a deadlock if one of two members goes rogue.  With 3 members,
you would need at least two to go rogue together, which again is
technically possible, but even less likely than a single rogue.

Greg


On Tue, May 19, 2015 at 1:13 AM, Chris Disspain <ceo at auda.org.au> wrote:

> Jordan,
>
> that the only way they can make decisions is on the resolution of the
> relevant SO or AC council.
>
>
> In the same way that one needs a legal entity to be able to force ICANN to
> abide by its bylaws in a court, one needs a legal entity to force the UA to
> abide by its rules. So although the rules of the UA may say that it can
> only make decisions based on the resolution of the relevant SO (just
> like ICANN’s fundamental bylaws will say ICANN can only do X if the SOs/ACs
> agree) the SO cannot itself enforce that rule.
>
> As I understand it, since the SO would not be a legal entity, the SO
> cannot make the UA abide by its rules. Thus, using the simplest case as an
> example, where the UA has a single member (the Chair of the SO as Alan has
> suggested) and that member started to not abide by the rules then the SO
> would need to use an agreed mechanism to replace the Chair as member. And
> if the Chair refused to stand aside as member then the ‘new chair’ would
> have to bring proceedings against the him/her and have a court order that
> the the ‘correct’ member is the ‘new chair’.
>
> I think I’ve got that right but stand to be corrected.
>
>
> Cheers,
>
>
> Chris
>
> On 19 May 2015, at 14:56 , Jordan Carter <jordan at internetnz.net.nz> wrote:
>
> hi all, hi Alan
>
> I think these are exactly the sorts of questions we do need to unpick.
>
> My own preference is that the UAs are almost total shells - that the only
> way they can make decisions is on the resolution of the relevant SO or AC
> council. That way, there's no need for "Representatives" to be appointed.
> The lawyers have confirmed that this approach works at a high level.
>
> It avoids all the concerns about who needs to be chosen etc.
>
> I really hope we can all unpick these issues to find the best model, one
> that is both enforceable, clear and simple. I'm confident we'll get there.
> We just have to wear the fact that the set of changes we are contemplating
> is going to be complicated to implement. It's once we get there that it has
> to be simple and clean.
>
> cheers
> Jordan
>
>
> On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg at mcgill.ca> wrote:
>
>> I believe I understand the issues regarding UAs as shadow organizations
>> for the AC/SOs. Although I still have strong reservations and am not sure
>> we need the legal enforceability that they provide, I am willing to accept
>> that they will work.
>>
>> But I also feel that using such structures will be difficult for the
>> overall community to understand (on an ongoing basis).
>>
>> I have a simple question. Instead of having a UA and the AC/SO naming
>> people to be their formal representatives in the UA, why can we not simply
>> have the AC/SO Chair or their Delegate(s) be the Members or Designators.
>> These people have legal status, so why do we need the UAs?
>>
>> I will not be able to join the call in a few hours, but will listen to
>> the recording later in the day.
>>
>> Alan
>>
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>
>
>
> --
> Jordan Carter
>
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> *InternetNZ*
>
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>
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