[CCWG-ACCT] Question regarding UAs

[Edward Morris]

Hi Chris,


> I am against handing that ultimate authority to a Californian court. I am
> against that for many reasons not the least of which is that, as a
> lawyer, I am extremely aware of just how unpredictable and dangerous courts
> can be.
>
>
>
I understand your concern and believe it is a valid one. However, I feel
compelled to point out that since it's inception the ultimate authority
over ICANN has, in fact, been the State of California and it's executive,
legislative and judicial systems.  Per California Corporations Code §5250:

A corporation is subject at all times to examination by the
Attorney General, on behalf of the state, to ascertain the condition
of its affairs and to what extent, if at all, it fails to comply with
trusts which it has assumed or has departed from the purposes for
which it is formed. In case of any such failure or departure the
Attorney General may institute, in the name of the state, the
proceeding necessary to correct the noncompliance or departure.

I do acknowledge that under the CCWG proposal there may be a greater chance
of legal action as the scope of potential litigation is increased. However
under the escalated scenario you have kindly provided the issue at hand
would likely be so fundamental that it would already have precipitated a
call for action by the California Attorney General under Corporations Code
§5250. I would suggest that under the proposed accountability reforms there
would be a better chance of compromise, due to the forces in play, prior to
litigation than is now the case. In any fundamental dispute, today or in
the proposed future, the courts of the State of California would/are the
ultimate 'decider', subject to overrule on certain issues by the federal
judiciary. I'd  suggest that the proposed structure where, if litigation on
fundamental matters is necessary,  the instigator would / could be the
community rather than the California AG, as is now the case, is a better
one. Of course, given the provisional remedies under consideration it would
be hoped that affairs would never bubble up to this level of acrimonious
discongruence.

Thanks for raising the issue. Accountability has many moving parts and it's
good we're having this discussion.

Best,

Edward Morris
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150521/c93a0d6f/attachment.html>