[CCWG-ACCT] Question regarding UAs

[Drazek, Keith]

All,

Like several others, I believe we’re over-complicating things.

This discussion is about giving the ICANN community standing to be able to challenge Board decisions in court, as a measure of last resort. Without that standing, the Board is free to ignore or reject the will of the community and the rest of our existing and proposed accountability mechanisms are only advisory.

Unless a court can order a board to take an action, or stop taking an action, or determine if the board acted improperly, then there is no real accountability because there is no ultimate power to compel corrective action. The problem right now with ICANN is that no one in the community has standing to go to court. Under a membership model, members will have standing, similar to the standing shareholders have in a typical public company. Currently, as Ed correctly outlined in his email below, the Attorney General of the State of California has standing, but we the ICANN community do not.

As such, I don’t understand claims that securing community powers (our goal) through legal enforceability and membership (as mechanisms to deliver that goal) somehow disenfranchises non-US ICANN participants, or how legal enforceability, in the words of auDA, “would also serve to further concentrate power in the United States.”  A membership structure that gives the ICANN community standing and legal recourse in ICANN’s current jurisdiction would actually enhance and expand the role of the global multi-stakeholder community, not diminish it from today’s status quo.

I find suggestions that membership and legal recourse are somehow threatening to non-US residents to be misguided or misplaced. As established in its current bylaws and articles of incorporation, ICANN is headquartered in California and is already subject to California law. Why shouldn’t the community have standing under ICANN’s existing jurisdiction to challenge Board decisions, as a measure of last resort? If I’m missing something, I’m happy to be educated further, but I don’t see those US-centric claims as having any factual basis.

Regards,
Keith

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Edward Morris
Sent: Thursday, May 21, 2015 5:50 AM
To: Chris Disspain
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Question regarding UAs

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
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