[CCWG-ACCT] Recap of yesterday's discussion on the models

[Mathieu Weill]

Dear colleagues,

This is a recap of the discussion we have had yesterday, based on the 
summary I have provided at the end of the session. This is intended to 
capture the progress we've made to support our further work.

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Our group has agreed that Multiple Member or Designator options 
presented higher risks of capture and of complexity, and that 
arbitration based options (such as MEM) presented some legal 
uncertainties that the group preferred to avoid.

We have focused our work on Sole Member and Sole Designator Models and 
started to compare them based on a list of criteria.

The list of criteria discussed so far was :
•Enforcement
–Direct or Indirect enforceability
–Worst case enforcement delay
–Cost of worst case enforcement

•Capture risk
–Derivative action against Board
–Right to dissolve organization
–Balance between the various SOs or the Acs
–Scope of issues whereBoardbusiness judgement is applied (fiduciary duty)

•Transparency
–Access to corporate records

•Complexity
–Necessity to create legal persons for SO/Acs
–Necessity for individuals to act as legal persons
–Ease of understanding
–Ability to explain that the change is minimal

The discussion has confirmed that :

  * Member model provides direct enforcement of Separation recommendation
  * CWG requirements could be met with either model
  * Board can be constrained in the Designator model if a separation
    process is incorporated in the Bylaws
  * CWG recommendations request a form of co-decision regarding Separation.
  * Going to Arbitration for some specific powers has some level of
    uncertainty both for Member and Designator models
  * Member enforcement of the various powers implies a year of legal action
  * IRP enforcement is not different in each model in terms of timing
  * Litigation is very unlikely, not only because of the time and cost
    associated, but also because Board recall would provide a faster way.


Our lawyers have been tasked to investigate whether and how the articles 
of Association could clarify that the Purpose of the organization 
includes the need to promote and enhance the bottom up multistakeholder 
model.  If so, this might align the duties of Directors with consensus 
decisions by the community.

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