[CCWG-ACCT] Regarding members

[Malcolm Hutty]

On 24/05/2015 09:29, Kavouss Arasteh wrote:
> Dear Malcolm
> What are those terns and conditions as well as applicable rules?

The SOACs make their own rules. Unless a SOAC creates a rule to the
contrary, a chair can be dismissed at will be a SOAC. This makes them
completely accountable to the SOAC.

That said, I think worrying about the misuse of the power of membership
is misplaced.

As I understand it, the only powers that members have are
i) to go to court alleging that ICANN has not followed its own Bylaws; and
ii) to inspect a few formal documents that the company is required to
have by law.

Is there anything else of which I'm unaware?

I can't see any reason to worry about excessive or inappropriate use of
such powers. Courts are familiar with frivolous litigation, and prepared
to suppress and sanction it - nor could we immunise ICANN against being
sued by anybody in the world on other grounds, even if we tried.

If this is not a worry, and if there are no other relevant powers of
which I'm unaware, there is an even simpler option that perhaps we
should consider: that the members of ICANN can be anybody in the world
who applies to become a member.

This would resolve one of the problems with having part of "the
community" as members: that they may decline to go to court when they
ought to.

Personally, I think that Chris' scenario of a member going to court to
try to force ICANN to act in a way the Board deems to be outside ICANN's
powers is pretty fanciful. Such a lawsuit would be doomed to failure: no
court will order a corporation to act in a particular way merely because
a member asks it, even if the corporation had erred in believing itself
precluded from acting in that way.

But a much more realistic scenario is that of a member going to court to
restrain the ICANN from acting in a way the Board consider within
ICANN's powers, but that the member considers outside scope. A court
could rule on whether a given action is outside a corporation's powers,
and if it finds that it is, order the corporation to desist.

However, there is a problem: if the Board is acting outside ICANN's
scope, quite likely this will not be a rogue Board acting in defiance of
the community, but rather a Board acting with the full support of the
SOACs: a "rogue community" asking ICANN to act outside its proper scope.
Who then is to restrain them?

Having a broad membership would address this problem. So I ask this
group, what (if any) problems might be caused by such an option?

Malcolm.

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            Malcolm Hutty | tel: +44 20 7645 3523
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