[CCWG-ACCT] Question regarding UAs

[Drazek, Keith]

Thanks Becky, 

This is very helpful in drawing the distinction between "authority" and "enforceability" and how membership helps to secure the other accountability mechanisms.

Regards,
Keith

-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Burr, Becky
Sent: Thursday, May 21, 2015 10:20 AM
To: Malcolm Hutty
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Question regarding UAs

With all due respect, the California court argument is a red herring.  The issue is authority. Without members, no matter what the bylaws say, the role of the community is in fact advisory.  As far as I have heard, that is the case in other jurisdictions such as Switzerland. 

I start from the assumption that the Board will comply with applicable law and respect the community's LEGAL AUTHORITY in a membership structure, making resort to litigation unnecessary.  Absent a membership structure, the board CANNOT legally defer to the community's "advice", it MUST fulfill its fiduciary obligations (and I agree with Steve C. that those obligations are far more nuanced then simply ensuring the continued existence of the corporation).

FWIW, the "mission creep" example doesn't work. The revised IRP would give the community a tool to prevent mission creep.  Likewise, the community power to block fundamental bylaws changes is a tool to prevent mission creep.  I'm not aware that we have proposed anything that would empower community-driven mission creep, and I would oppose any such power.  If there was a dispute between the board and the community about whether an action or inaction constituted mission creep, that dispute would be resolved by the IRP through binding arbitration using a sitting and diverse panel of international law experts. The role of a California court would be limited to enforcing the IRP's decision.  

Questions about how UAs are accountable are real; questions about the level of understanding and comfort with UAs are also real.  But waving the "California court" menace around only serves to raise anxiety and sow confusion. If ICANN was incorporated in Switzerland, the same -limited and hypothetical -issue would exist.  

The only way ICANN can avoid the ultimate jurisdiction of some court somewhere is to buy an aircraft carrier and conduct all business in international waters. 



Sent from my iPad

> On May 21, 2015, at 4:23 AM, Malcolm Hutty <malcolm at linx.net> wrote:
> 
> 
>> On 21/05/2015 08:14, Mathieu Weill wrote:
>> I have four questions :
>> - If the Board refuses to act on the arbitrator findings, why would 
>> the community turn to California Court instead of recall the Board ?
> 
> I expect that people's views on that would depend on the circumstances.
> 
> Suppose (for the sake of example) that the problem was that the Board 
> had inserted something crazy and wildly out of scope into the RAA, 
> without any support from the PDP and in defiance of an IRP ruling 
> instructing the Board to desist (but maybe at the behest of a 
> particular class of stakeholder).
> 
> In such circumstances, the gTLD community might feel that turning to 
> the court for enforcement of the IRP ruling was a less extreme measure 
> than spilling the whole Board.
> 
> Or they might try to spill the Board, but find that neither the ccNSO 
> nor the ASO would support them, as neither ccNSO nor ASO are directly 
> affected by the RAA themselves.
> 
> Additionally, there is one special circumstance in which referral to a 
> court would be the only possible recourse: in the event that the 
> community tries to exercise its power to spill the Board, and the 
> Board insists on remaining in office nonetheless.
> 
> Malcolm.
> 
> P.S. I am talking, of course, of extreme scenarios that no previous 
> Board ever came close to, nor would I expect the current Board would 
> dream of enacting. I have great respect for the integrity of the 
> current incumbents. But our job is to propose the reforms necessary to 
> provide assurance that this will continue for all future Boards;  
> considering extreme scenarios is our responsibility, and cast no 
> aspersions on the personal integrity of current or past Board members. 
> This has been said many times before, but our conversation has 
> recently been joined by others who have clearly not heard it.
> 
> 
> -- 
>            Malcolm Hutty | tel: +44 20 7645 3523
>   Head of Public Affairs | Read the LINX Public Affairs blog London 
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