[CCWG-ACCT] question on fiduciary duties and their objectivity

[Avri Doria]

Hi,

Maybe someone mentioned it and I missed it, but how many directors have
retained counsel in our history.
More than 1 or 2?

avri

On 05-Oct-15 07:07, Bruce Tonkin wrote:
> Thanks Greg.  That matches my understanding also.
>
> My point is the board already had that right.  We are in effect
> getting some independent advice from the CCWG legal counsel through
> this process.
>
> Sent from my iPhone
>
> On 5 Oct 2015, at 9:02 PM, Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>> wrote:
>
>> Bruce,
>>
>> The reason that a Board would retain counsel independent of the
>> corporation is rather more specific, and not really addressed by your
>> response.  A Board (or a Board committee) would retain independent
>> counsel to receive advice that is independent of the corporation and
>> independent of the counsel retained by the corporation.  This is most
>> typical when the Board (or a committee) is investigating activities
>> or actions of the corporation (as distinct from actions of the
>> Board), but it can and may be invoked any time the Board is concerned
>> about getting advice that is independent of management and its
>> retained counsel, including getting a "second opinion" on advice the
>> Board is receiving from the corporation's counsel.
>>
>> The corollary to this is that a Board is not required to take the
>> advice of the corporation's counsel at "face value," but can retain
>> its own counsel.
>>
>> Greg
>>
>> Greg
>>
>> On Fri, Oct 2, 2015 at 9:50 PM, Bruce Tonkin
>> <Bruce.Tonkin at melbourneit.com.au
>> <mailto:Bruce.Tonkin at melbourneit.com.au>> wrote:
>>
>>     Hello Greg,
>>
>>
>>     >>  The idea of independent counsel for board members is an
>>     interesting one.  It's not uncommon in the corporate governance
>>     world, as far as I understand.
>>
>>     My understanding is that Board directors already have that right.
>>
>>     Note that several of our Board members are lawyers (although not
>>     in California), and several Board members have access to their
>>     own legal counsel through their employment.
>>
>>     I don’t recall in the time I have been on the Board that a Board
>>     member has sought independent counsel (which would be paid for by
>>     ICANN)  - but I believe that it is available.
>>
>>     Certainly in this process I have spoken directly over lunch,
>>     morning tea etc with many of the lawyers involved – participants
>>     of the CCWG, members of the CCWG, legal counsel to the CCWG,
>>     lawyers on the Board, ICANN’s in-house lawyers, ICANN.s external
>>     counsel etc.   I listen to them all, and I read all the posts.
>>
>>     This is my current understanding of the fiduciary responsibility
>>     from the Articles of Association:
>>
>>     " In furtherance of the foregoing purposes, and in recognition of
>>     the fact that the Internet is an international network of
>>     networks, owned by no single nation, individual or organization,
>>     the Corporation shall, except as limited by Article 5 hereof,
>>     pursue the charitable and public purposes of lessening the
>>     burdens of government and promoting the global public interest in
>>     the operational stability of the Internet by
>>
>>     (i) coordinating the assignment of Internet technical parameters
>>     as needed to maintain universal connectivity on the Internet;
>>
>>     (ii) performing and overseeing functions related to the
>>     coordination of the Internet Protocol ("IP") address space;
>>
>>     (iii) performing and overseeing functions related to the
>>     coordination of the Internet domain name system ("DNS"),
>>     including the development of policies for determining the
>>     circumstances under which new top-level domains are added to the
>>     DNS root system; (iv) overseeing operation of the authoritative
>>     Internet DNS root server system; and
>>
>>     (v) engaging in any other related lawful activity in furtherance
>>     of items (i) through (iv).
>>
>>     The Corporation shall operate for the benefit of the Internet
>>     community as a whole, carrying out its activities in conformity
>>     with relevant principles of international law and applicable
>>     international conventions and local law and, to the extent
>>     appropriate and consistent with these Articles and its Bylaws,
>>     through open and transparent processes that enable competition
>>     and open entry in Internet-related markets. To this effect, the
>>     Corporation shall cooperate as appropriate with relevant
>>     international organizations."
>>
>>
>>     In short hand:  the Board's fiduciary responsibility  is towards
>>     the Internet community as a whole, and must promote the global
>>     public interest in the operational stability of the Internet.
>>
>>     Most of us on the Board don’t actually need lawyers to tell us
>>     how to exercise that responsibility.
>>
>>     I can see that the Board may at times be in conflict with any one
>>     SO or AC with respect to that responsibility, but if there is a
>>     consensus of SOs and ACs has a view about an action the Board is 
>>     taking with respect to the operational stability of the Internet
>>     - then I can't imagine a situation where the Board would do
>>     something differently.
>>
>>
>>     Regards,
>>     Bruce Tonkin
>>
>>
>>
>>
>>
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>>
>>
>
>
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