[CCWG-ACCT] pending legal questions

[Greg Shatan]

It's a fair question to ask, regardless of whether one is an advocate for
the idea: can we find a way for "natural persons" to be the members of
ICANN, yet clearly only as "alter egos" to the SO/ACs and not in their own
capacity?  To my mind, the "natural person" would need to be expressly and
solely serving in his or her capacity as a representative of the SO/AC by
virtue of their position so that the "real" member was the SO/AC: e.g.,
"GNSO, by its chair Jonathan Robinson"  That linkage needs to be explicitly
and firmly established -- the idea that the community leaders would be the
members seems a little odd.

Clearly, membership meetings would not be freewheeling affairs, since the
sole ability of the members-in-fact should be transmitting already decided
positions of the SO/ACs.  As such, any give and take regarding positions
and concerns would need to take place within the community prior to a
members meeting, rather than at a members meeting.

On Sun, May 24, 2015 at 9:15 PM, Alan Greenberg <alan.greenberg at mcgill.ca>
wrote:

>  Leon, at least from my point of view, I think the question is a bit more
> specific. We of course know that individuals have a legal persona and
> therefore could be Members (or Designators).
>
> The question is whether it is practical to structure things so that the
> SO/AC Chairs (or other individuals named by their office within the ICANN
> community (perhaps a Chair of a SG in the case of the GNSO) can be
> identified as Members and whoever the incumbent is in the office plays that
> role. Or if that is not possible, is there an easy easy to designate  them
> (no pun intended) as Designators or Members when they assume office. And if
> some peron is playing that role, can they appoint someone else to act in
> that capacity in place of them.
>
> Alan
>
> At 24/05/2015 08:56 PM, León Felipe Sánchez Ambía wrote:
>
> Dear Kavouss,
>
> Thanks for your questions. At this stage, the advice from lawyers is that
> membership approach can be implementable in many ways. One being the
> establishment of UA but also any other kind of legal vehicle. The example
> mentioned has been a non-profit organization. I stress that this has just
> been used as an example and no one has suggested this approach as it has
> only been used to illustrate which other legal vehicles could be used to
> become a member.
>
> The bottom line is that to exercise certain powers as Board member removal
> and budget approval, there would be the need to have a legal vehicle
> (whatever legal vehicle) to implement the proposal.
>
> I hope you find this information useful. Please let me know if you need
> further clarification.
>
>
> Best regards,
>
>
> León
>
> El 24/05/2015, a las 2:29, Kavouss Arasteh < kavouss.arasteh at gmail.com>
> escribió:
>
> Dear Leon
> I have  asked few questions for which no reply are yet provided?!
> Now , since last week , extensive discussions are on going on whether a
> membership approach is implementable without a need to UA?
> May you raise this issue to the legal council pls
> Regards
> Kavouss
>
>
> Sent from my iPhone
>
> On 24 May 2015, at 02:21, León Felipe Sánchez Ambía <
> leonfelipe at sanchez.mx> wrote:
>
> 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 exxample 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 prootections 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
> supervisoory 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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