[CCWG-ACCT] UPDATE - Recommendation 4 - power to remove Individual Board director - 1st reading conclusions

Alice Jansen alice.jansen at icann.org
Mon Jan 11 21:37:44 UTC 2016

Sent on behalf of CoChairs

please find attached the updated document on Recommendation 4. This includes language offered by our lawyers for para.39.

You will remember there was a concern expressed that the waiver to be signed by the Directors should not lead to a situation where the Director is defamed, e.g. when unfounded allegations are made that the Director is e.g. a murderer or fraudster. Our legal counsel has advised:

"As to the extreme example you pose regarding defamation, the waiver that we are suggesting is unlikely to be viewed as absolute.  A court would likely view it through a lens of equity in relation to the specific set of facts presented;    outrageous facts that involve intentional known falsehoods may lead to a court not recognizing the waiver as against public policy."

Also, we have included the requirement for a comprehensive and written rationale for Board member removal and the requirement for a dialogue with the Director (see para. 41).

Thomas, Mathieu, León

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>
Date: Wednesday, January 6, 2016 at 3:02 PM
To: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Recommendation 4 - power to remove Individual Board director - 1st reading conclusions

Dear Colleagues,

Please find below the main conclusions of our deliberations during call #74. The updated document is attached.

a.            to mitigate risk of litigation in case of Board removal, pre-service letters for Board members could be required (see paragraph 39 page 9)
b.            a written rationale will be offered very early in the process
c.            Lawyers are tasked to provide adequate language to provide adequate direction for implementation.

                This version includes edits to incorporate comments from the Icann Board (section 3c – page 12 of the Icann Board comment) that were not included in the previous version (thanks to Kavouss for drawing our attention to this). Each of these comments were considered as useful directions for implementation. (see paragraphs 41 and 48)

2nd reading is planned during next Tuesday’s call.


Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>
Twitter : @mathieuweill
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