[CCWG-ACCT] Question regarding UAs

[Chris Disspain]

Hi Edward,

> 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:

Correct. These are the powers of the AG which the CCWG has felt are insufficient.

> 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. 

This is a key part of auDA's concerns.

> Of course, given the provisional remedies under consideration it would be hoped that affairs would never bubble up to this level of acrimonious discongruence. 

I agree that, under the proposed accountability reforms, there would be a greater chance of “compromise” prior to litigation. That is precisely why we are supporting the reforms.  We not only “hope” that “affairs would never bubble up to this level of acrimonious discongruence” but believe that improved accountability and escalation mechanisms provide sufficient assurance that they never would.



Cheers,

Chris Disspain | Chief Executive Officer
.au Domain Administration Ltd
T: +61 3 8341 4111 | F: +61 3 8341 4112
E: ceo at auda.org.au <mailto:ceo at auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> 
auDA – Australia’s Domain Name Administrator



> On 21 May 2015, at 19:49 , Edward Morris <egmorris1 at toast.net> wrote:
> 
> 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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