[CCWG-ACCT] pending legal questions

Sun May 24 00:21:29 UTC 2015

Dear Jorge,

Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you.

I hope you find this information useful.

A.  Jurisdiction:   What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community?

1.  Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure:  Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed .  The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) .  These internal affairs include issues that one would expect to see expressed in bylaws such as  how the entity is organized internally and the various roles and decision rights and responsibilities of key participants:  members or designators (if any), directors and officers, and other key constituents.   Generally the corporation has to have s a "registered office"  in the state of incorporation but it may have its primary office in another jurisdiction.   There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution.  For example,   the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents.  Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes.  Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and  provide forspecific mechanisms to apply for dispute resolution.  For example CA law need not be the law chosen to rule a particular contractual relation.  And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements.  

To the extent that this question is intended to relate to  establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished  and the opportunity to undertake specific research.  

To the extent that this question is about locking in a jurisdiction  for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw.  

2.   Extra accountability mechanisms in other jurisdictions:  As to  whether extra accountability mechanisms  are available in other jurisdictions, we would have to engage in research  and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities.  We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we  undertake research on this question it would be helpful to better understand the underlying concern that is driving this question. 

B.  Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California?

1.  Liability of persons participating on proposed bodies:   While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for example engaging in self-dealing.  In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith.  As to other persons – for examples members of a review panel, these same protections of exculpation and indemnification are available.  Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.     

2.  Supervisory boards:   A two tier board structure – with of a supervisory board and a management board is generally not a specific legal construct under state corporate law in the US.  State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers.  Those officers are not typically organized into a “managing board” (but this may be a difference without much specific legal import).   Additionally, a board can delegate to a  board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. 
Best regards,

León

> El 23/05/2015, a las 1:22, Jorge.Cancio at bakom.admin.ch escribió:
> 
> Dear Co-Chairs, dear all
> 
> 
> I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
> 
> All questions were refered to and posed during the CCWG call of March 31st:
> 
> ==
> 
> - On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)? 
> 
> -  question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
> 
> - it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
> 
> ==
> 
> The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
> 
> Thank you very much for your assistance and best regards
> 
> 
> 
> Jorge Cancio
> Switzerland
> 
> Von meinem iPhone gesendet

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