[CCWG-ACCT] pending legal questions
Mathieu Weill
mathieu.weill at afnic.fr
Tue May 26 07:01:24 UTC 2015
Dear Kavouss, Dear Colleagues,
The item is indeed on today's CCWG call agenda. (item 3, see attachment).
Best
Mathieu
Le 26/05/2015 08:49, Kavouss Arasteh a écrit :
> Dear Leon
> Dear other Co-chairs
> Dear Colleagues
> From the e-mail discussions, I recognized that the matter of Member
> Model with or without UA and various options to do so is still unclear
> for many
> When therre are more than 150 e-m,ailé exchanged in which the issue
> was addressed from various angle
> It means that there are issues to be addressed
> May I respectfully suggest that include the matter in today's agenda
> Kavouss
>
> 2015-05-26 8:37 GMT+02:00 Barrack Otieno <otieno.barrack at gmail.com
> <mailto:otieno.barrack at gmail.com>>:
>
> I think it is always best to institutionalize membership that way by
> laws have room to operate since we are dealing with an entity as
> opposed to when the same is personalized which allows room for
> feelings to operate.
>
> On 5/26/15, Seun Ojedeji <seun.ojedeji at gmail.com
> <mailto:seun.ojedeji at gmail.com>> wrote:
> > On Tue, May 26, 2015 at 6:20 AM, Bruce Tonkin <
> > Bruce.Tonkin at melbourneit.com.au
> <mailto:Bruce.Tonkin at melbourneit.com.au>> wrote:
> >
> >> ...... Or put another way – how is the member held
> accountable to the
> >> appointing organization?
> >>
> >
> > Good question, another question from me is "whether the
> membership can be
> > tied to the position and not the person". i.e Is it possible to
> recognise
> > the Chair of SO/AC as the members? if yes, i think that would
> make whatever
> > accountability mechanism within the SO/AC applicable on their member
> > representative; Like the various SO/AC would be able to replace
> their Chair
> > (as they would have normally done) if they find him/her no
> longer operating
> > by their guidelines
> >
> > Regards
> >
> >>
> >>
> >> Regards,
> >>
> >> Bruce Tonkin
> >>
> >>
> >>
> >>
> >>
> >> *From:* accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org> [mailto:
> >> accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>] *On
> Behalf Of *Alan
> >> Greenberg
> >> *Sent:* Monday, 25 May 2015 11:16 AM
> >> *To:* León Felipe Sánchez AmbÃa; Kavouss Arasteh
> >> *Cc:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> >> *Subject:* Re: [CCWG-ACCT] pending legal questions
> >>
> >>
> >>
> >> 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 AmbÃa 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 <mailto: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 AmbÃa <
> >> leonfelipe at sanchez.mx <mailto: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
> <mailto: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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> >> Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> >>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> >>
> >>
> >> _______________________________________________
> >> Accountability-Cross-Community mailing list
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> <mailto:Accountability-Cross-Community at icann.org>
> >>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> >>
> >>
> >> _______________________________________________
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> >> Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> >>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> >>
> >>
> >
> >
> > --
> >
> ------------------------------------------------------------------------
> >
> >
> >
> >
> >
> > *Seun Ojedeji,Federal University Oye-Ekitiweb:
> http://www.fuoye.edu.ng
> > <http://www.fuoye.edu.ng> Mobile: +2348035233535
> <tel:%2B2348035233535>**alt email:
> > <http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
> <mailto:seun.ojedeji at fuoye.edu.ng>
> > <seun.ojedeji at fuoye.edu.ng <mailto:seun.ojedeji at fuoye.edu.ng>>*
> >
> > The key to understanding is humility - my view !
> >
>
>
> --
> Barrack O. Otieno
> +254721325277 <tel:%2B254721325277>
> +254-20-2498789 <tel:%2B254-20-2498789>
> Skype: barrack.otieno
> http://www.otienobarrack.me.ke/
> _______________________________________________
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>
>
--
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr
Twitter : @mathieuweill
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