[CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal

Thu Sep 24 05:52:55 UTC 2015

Dear All,
Pls find attached my preliminary review of ICANN comments on CCWG 2nd
prposals
Regards
Kavouss

2015-09-24 4:04 GMT+02:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:

> Dear All,
> Pls find attached my review of Legal Memo with some highliughts as well as
> some cut and paste from ICANN Matrix
> Regards
> Kavouss d
>
> 2015-09-23 15:00 GMT+02:00 Gregory, Holly <holly.gregory at sidley.com>:
>
>> Thank you for that feedback, Jorge.  We will consider whether to issue a
>> revised draft clarifying the point.
>>
>>
>>
>> *HOLLY* *GREGORY*
>> Partner
>>
>> *Sidley Austin LLP*
>> +1 212 839 5853
>> holly.gregory at sidley.com
>>
>>
>>
>> *From:* Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch]
>> *Sent:* Wednesday, September 23, 2015 8:56 AM
>> *To:* Gregory, Holly; jordan at internetnz.net.nz;
>> accountability-cross-community at icann.org
>> *Subject:* AW: [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM
>> Proposal and ICANN Board MEM Proposal
>>
>>
>>
>> Thanks for the prompt reply – however I feel that your Memo is a bit too
>> “absolute” in its wording as regards to the exclusion of this specific
>> power from the MEM (p.4: “As noted below, the MEM process would not be
>> available to challenge a failure by the Board to follow this procedure.”),
>> while the Board Matrix is apparently clear in stating that Board actions
>> not complying would fall into the MEM (p. 61 Matrix: “*In the event the
>> Board fails to abide by these processes, or the community believes that the
>> Board has taken a decision in these areas that is inconsistent with the
>> Mission and Core Values, **the MEM will provide binding arbitration over
>> that issue**. In addition, the community will have the ability to remove
>> individual Board Directors or recall the Board*.”)…
>>
>>
>>
>> Jorge
>>
>>
>>
>> *Von:* Gregory, Holly [mailto:holly.gregory at sidley.com
>> <holly.gregory at sidley.com>]
>> *Gesendet:* Mittwoch, 23. September 2015 14:29
>> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>;
>> jordan at internetnz.net.nz; accountability-cross-community at icann.org
>> *Betreff:* RE: [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM
>> Proposal and ICANN Board MEM Proposal
>>
>>
>>
>> Thank you for your questions Jorge.  Let me try to quickly respond in the
>> interest of resolving the apparent confusion.
>>
>>
>>
>> In the Frequently Asked Questions provided by the Board regarding
>> community enforceability, see the answer to Q3.
>>
>>
>>
>> The point is that outside of  a member context there are limits on what
>> powers can be given  to the community in a manner that would be
>> enforceable.  That is why we wrote:
>>
>>
>>
>> As a legal matter, there is a level of uncertainty arising to doubt that
>> Bylaw provisions providing these rights (Budget veto etc) to the community
>> as represented by the SOs and ACs would be legally cognizable, let alone
>> enforceable, outside of a member context.
>>
>>
>>
>> We provided Jones Day and ICANN Legal the long chart yesterday morning
>> for comments.  And we greatly appreciate that they provided comments in a
>> short period of time, which we reviewed and incorporated based on our
>> judgment.  Jones Day and ICANN Legal were not provided the opportunity to
>> review the memo due to our time constraints but we of course welcome and
>> would value their comments.
>>
>>
>>
>> Kind regards, Holly
>>
>> *HOLLY* *GREGORY*
>> Partner
>>
>> *Sidley Austin LLP*
>> +1 212 839 5853
>> holly.gregory at sidley.com
>>
>>
>>
>> *From:* accountability-cross-community-bounces at icann.org [
>> mailto:accountability-cross-community-bounces at icann.org
>> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *
>> Jorge.Cancio at bakom.admin.ch
>> *Sent:* Wednesday, September 23, 2015 4:39 AM
>> *To:* jordan at internetnz.net.nz; accountability-cross-community at icann.org
>> *Subject:* Re: [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM
>> Proposal and ICANN Board MEM Proposal
>>
>>
>>
>> Thanks Jordan, for forwarding these valuable inputs.
>>
>>
>>
>> I’m going through the Memos and I just stumbled on an issue where I’m not
>> sure whether the Memo reflects or not the Board proposal. On page 4 of the
>> “Memorandum” it is said that the community power on budget, strategic and
>> operating plan is “not subject to binding arbitration under the Board
>> proposal” – but on page 61 of the Board Matrix it is affirmed that “*In
>> the event the Board fails to abide by these processes, or the community
>> believes that the Board has taken a decision in these areas that is
>> inconsistent with the Mission and Core Values, **the MEM will provide
>> binding arbitration over that issue**. In addition, the community will
>> have the ability to remove individual Board Directors or recall the Board*
>> .”
>>
>>
>>
>> Am I missing something?
>>
>>
>>
>> And, this leads me to a more general question: at the beginning of the
>> Memo it is stated that Jones Day was consulted in order to avoid
>> misunderstandings – did they reply and confirm that there were none?
>>
>>
>>
>> Thanks and regards
>>
>>
>>
>> Jorge
>>
>>
>>
>> *Von:* accountability-cross-community-bounces at icann.org [
>> mailto:accountability-cross-community-bounces at icann.org
>> <accountability-cross-community-bounces at icann.org>] *Im Auftrag von *Jordan
>> Carter
>> *Gesendet:* Mittwoch, 23. September 2015 06:20
>> *An:* Accountability Cross Community <
>> accountability-cross-community at icann.org>
>> *Betreff:* [CCWG-ACCT] Fwd: [Acct-Legal] Comparison of CCWG CMSM
>> Proposal and ICANN Board MEM Proposal
>>
>>
>>
>> Hi all - forwarded to get this to you ASAP, not sure who was meant to.
>>
>> J
>>
>>
>>
>> ---------- Forwarded message ----------
>> From: *Gregory, Holly* <holly.gregory at sidley.com>
>> Date: 23 September 2015 at 14:04
>> Subject: [Acct-Legal] Comparison of CCWG CMSM Proposal and ICANN Board
>> MEM Proposal
>> To: "thomas at rickert.net" <thomas at rickert.net>, "mathieu.weill at afnic.fr" <
>> mathieu.weill at afnic.fr>, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>,
>> "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>, Alice
>> Jansen <alice.jansen at icann.org>, Grace Abuhamad <grace.abuhamad at icann.org
>> >
>> Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com>, ICANN-Adler <
>> ICANN at adlercolvin.com>
>>
>> Dear Co-Chairs, Members and Participants of CCWG,
>>
>>
>>
>> Attached please find three documents to assist in preparation for our
>> meeting in L.A.:
>>
>>
>>
>> ·         A memo from Sidley and Adler with our high level observations
>> regarding comparison between the Board Proposal and the CCWG Proposal.
>>
>> ·         A Summary Comparison of Key Characteristics of CMSM Model and
>> Board Proposal – this or something along these lines will be expanded out
>> in the next several days to include the Sole Designator model as requested
>> on today’s call
>>
>> ·         Comparison of CCWG 2nd Draft Proposal (Community Mechanism as
>> Sole Member) and ICANN Board Proposal (Comparison)
>>
>> We look forward to seeing you in L.A.,
>>
>>
>>
>> Holly and Rosemary
>>
>>
>>
>> *HOLLY* *J. GREGORY*
>> Partner and Co-Chair
>> Global Corporate Governance & Executive Compensation Practice
>>
>> *Sidley Austin LLP*
>> +1 212 839 5853
>> holly.gregory at sidley.com
>>
>>
>>
>>
>>
>>
>>
>>
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>>
>>
>> --
>>
>> Jordan Carter
>>
>> Chief Executive
>> *InternetNZ*
>>
>>
>> +64-4-495-2118 (office) | +64-21-442-649 (mob)
>> Email: jordan at internetnz.net.nz
>> Skype: jordancarter
>>
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