[CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws

[Bruce Tonkin]

Hello All,

> 
> The Board is supportive of the changes reflected in the document after the first reading.  The Board notes that while it is supportive of the inspection right being reflected as a Fundamental Bylaw, the inspection right should be noted as a right of the community, and not of the Sole Designator, to align with the Board's comments on Recommendation 1.

Just to provide a little more context in response to questions on the list.

The role of the designator is to add or remove Board directors.   This role is enforceable under California law.

The inspection right is a right for the ACs and SOs.   An AC or SO can exercise this right independently of the legal entity that will be the sole designator.     If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws.   The community can then use the IRP to get a binding decision.    In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.

In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws.   The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with.   This is a clear escalation path that applies to all bylaws.

Regards,
Bruce Tonkin