[CCWG-ACCT] Question regarding UAs
Edward Morris
egmorris1 at toast.net
Wed May 20 06:05:36 UTC 2015
Hi Alan,
I'm not sure. I am sure that as a resident of the UK I would be uncomfortable being a member of a UA. I've been advised that in this country members of UA's are not shielded from legal liability. I know in Finland, where I received my legal education, members of UA's are expressly jointly and severably liable for a UA's activities.
Is this a real problem? Likely not. Comity should prevail and I doubt I'd ever be sued. Still this is a volunteer activity and I'm not likely going to be willing to take any chance with my families limited assets. I should note that we all currently may have some exposure from our current ICANN activities. Shell UA's are probably a pretty good shield for me and most of us provided I/we're not in a member class. Formal incorporation would be a complete shield.
We do have a rather full tapestry of legal personalities to chose from in the State of California to go along with our very diverse SOAC's. It just may be a case where different personalities are better fits for different groups.
Ed
Sent from my iPhone
> On May 20, 2015, at 6:27 AM, Alan Greenberg <alan.greenberg at mcgill.ca> wrote:
>
> Incorporating the GNSO (or perhaps the GNSO Council?) may well make it legally liable for the decisions it takes. Are you really sure you want that?
>
> Alan
>
> At 20/05/2015 01:09 AM, Edward Morris wrote:
>> Hi Avri,
>>
>> Rather than being confused I think you understand the concepts perfectly and are pointing out some of the conceptual difficulties with the shell UA's.
>>
>> My understanding, and I stand to be corrected, is that each SOAC will be able to decide the form of legal personality it assumes. I hope that is correct. While shell vehicles may be appropriate for some groups I'd be interested at the GNSO level, for example, of exploring direct incorporation of the GNSO itself. I'm not committing myself to the idea but I do think it might be worth exploring.
>>
>> My strong preference is that the only centralized requirement coming out of our group is that each SOAC must assume a legal personality. I hope there is a possibility of leaving the exact form chosen up to the individual SOAC. I think that would be very much in keeping with the bottom up governance model most of us subscribe to.
>>
>> Ed
>>
>>
>>
>> On Wed, May 20, 2015 at 5:41 AM, Avri Doria <avri at acm.org> wrote:
>> Hi,
>>
>> I think I understand the argument about members becoming that to which
>> ICANN, and its Board, are responsible and accountable. From that
>> perspective it sounds really good.
>>
>> What I have having trouble understanding is an accountability structure
>> were there is a discontinuity between the SOAC and the UA. If each of
>> the Board designating SOAC were the UA, it think I would understand.
>> But I just do not see how the UA are accountable to the people and
>> organizations that participate in each of the SOAC. Yes, the SOAC
>> designates it UA representative, but how is (s)electing one of these any
>> more accountable than (s)electing the Board as we do now. Don't we just
>> move the perceived/possible unaccountability down a layer in the hierarchy?
>>
>> I think I am as comfortable with complexity as the next person. And I
>> understand how in computer science any problem can solved by adding
>> another layer of indirection, but in this case the extra layer we are
>> creating does not seem to really be accountable to anyone but itself,
>> except by (s)election procedures.
>>
>> I am sure I am missing some critical bit of understanding and hope
>> someone can explain the chain of accountability in the membership
>> model. I feel that we are still hand-waving a bit in the explanations.
>> In a sense it seems as if we are creating a 'council' that is omnipotent
>> in the powers it is given, except that they can somehow be replaced.
>>
>> Thanks and apologies for my persistent confusion.
>>
>> avri
>>
>>
>>
>> On 20-May-15 01:14, Jordan Carter wrote:
>> > Hi all
>> >
>> > This thread is useful to tease out some of the questions and concerns
>> > and confusions with the UA model, and as rapporteur for the WP
>> > responsible for refining this part of the proposal I am reading it avidly.
>> >
>> > I just want to take the opportunity to remind us all why membership
>> > (or something analogous) is an important aspect of the reforms we are
>> > proposing - no matter the precise details.
>> >
>> > At the moment without members, ICANN is fundamentally controlled by
>> > the Board. The only external constraint is the IANA functions contract
>> > with NTIA. The long list of community concerns and examples detailed
>> > by our earlier work in this CCWG shows that even with that constraint,
>> > accountability isn't up to scratch.
>> >
>> > We are working on a settlement without that NTIA contract.
>> > Accountability has to get better even *with* the contract.
>> > Fundamentally better, without it.
>> >
>> > Either we have a membership structure or some other durable approach
>> > that firmly embeds the stewardship of ICANN and the DNS in the ICANN
>> > community, or... we remain with Board control.
>> >
>> > Given ICANN's history, anyone who is advocating a continuation of
>> > Board control is arguing for a model that can't be suitably
>> > accountable, and that seems highly likely to fail over time, with real
>> > risks to the security and stability of the DNS.
>> >
>> > A real, fundamental source of power over the company absent the
>> > contract *has* to be established. The membership model is the most
>> > suitable one to achieve that that we have considered so far.
>> >
>> > So: we need to be creative and thoughtful in how we make that model
>> > work in a fashion that disrupts ICANN's general operation as little as
>> > possible. But the key there is "as possible." Real change is needed
>> > and much refinement and comment is needed.
>> >
>> > If there are proposals to achieve the same shift in control from ICANN
>> > the corporation to ICANN the community, I hope they come through in
>> > the comment period. So far, none have - but there are still two weeks
>> > of comments to go.
>> >
>> > cheers
>> > Jordan
>> >
>> >
>> > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm at linx.net
>> > < mailto:malcolm at linx.net>> wrote:
>> >
>> > This whole thread seems to have massively overcomplicated the
>> > question.
>> >
>> >
>> > Unless I have missed something, the only reason we need "members"
>> > is to
>> > stand as plaintiff-of-record in a lawsuit against the ICANN Board
>> > complaining that the Board has failed to adhere to the corporations
>> > bylaws. Such a lawsuit would in reality be conducted by an SO or
>> > AC, but
>> > a person with legal personality needs to act as plaintiff-of-record.
>> >
>> > Why not simply proceed, as Samantha suggested, with the SOACs'
>> > Chairs as
>> > the members of the corporation? Could the Articles (or Bylaws, as
>> > appropriate) not simply identify the SOACs' Chairs as the members, ex
>> > officio and pro tempore?
>> >
>> > An SOAC Chair that refused to act as plaintiff-of-record when required
>> > to do so by his SOAC could simply be replaced. Likewise a Chair that
>> > went rogue and initiated a lawsuit without their consent.
>> >
>> > You can't make the SOAC a member without turning them into UAs,
>> > with all
>> > the attendent complexity. But I don't see that there should be any
>> > such
>> > problem with designating the chair of a SOAC, who will be a natural
>> > person, as a member of the corporation; the fact that the SOAC is
>> > not a
>> > UA is then irrelevant.
>> >
>> > In the event that there were any dispute as to whether a particular
>> > person is in truth an SOAC Chair, this would surely be a simple
>> > preliminary matter of fact for the court. It is surely beyond dispute
>> > that if the Articles designated "Alan Greenberg" as the member, it
>> > would
>> > be a matter of fact as to whether or not the person before the
>> > court was
>> > indeed Alan Greenberg; surely it is the same as to whether the person
>> > before the court is "the current Chair of ALAC", if that should be
>> > what
>> > is specified in the Articles?
>> >
>> > Malcolm.
>> >
>> > --
>> > Malcolm Hutty | tel: +44 20 7645 3523
>> > <tel:%2B44%2020%207645%203523>
>> > Head of Public Affairs | Read the LINX Public Affairs blog
>> > London Internet Exchange | http://publicaffairs.linx.net/
>> >
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>> > 21-27 St Thomas Street, London SE1 9RY
>> >
>> > Company Registered in England No. 3137929
>> > Trinity Court, Trinity Street, Peterborough PE1 1DA
>> >
>> >
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>> >
>> >
>> > --
>> > Jordan Carter
>> >
>> > Chief Executive
>> > *InternetNZ*
>> >
>> > 04 495 2118 (office) | +64 21 442 649 (mob)
>> > jordan at internetnz.net.nz < mailto:jordan at internetnz.net.nz>
>> > Skype: jordancarter
>> >
>> > /A better world through a better Internet /
>> >
>> >
>> >
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