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

Jordan Carter jordan at internetnz.net.nz
Mon Jan 25 22:39:19 UTC 2016

This isn't quite right - as far as I am aware the entity that is the Sole
Designator will have the right to appoint and remove directors, and be the
'third party' that can approve changes to Icann fundamental bylaws or block
changes to Icann standard bylaws.

I'm not sure this is a revelation of any sort, or causes any confusion at
all. These powers along with all the others will be set out in the bylaws,
as has been the case all along. The only distinguishing feature is that the
legislation in California gives designators the director rights, and gives
the right of the articles / bylaws to include third party approvals.

Even if people are confused about this, there is no problem in substance to


On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:

> Hi Greg,
> I don't think we are in disagreement in the substance of all these. It's
> just the naming we are in disagreement upon and I am still of the opinion
> that a designator only has the statutory power to remove/add board members.
> All other powers/process we have managed to put in the bylaw may need to
> be called/named something else as they are not made possible because of the
> designator but rather because of the fact that they are now written in the
> bylaw and the board normally would want to respect such a document.
> In anycase, unless there is any other change you think has been proposed
> other than giving inspection rights to the community (which you and I are
> in agreement) that affects the current proposal,  I don't see any reason to
> still consider this open as such.
> Regards
> On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc at gmail.com
> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>> wrote:
>> Seun,
>> You misunderstand me.  The Designator does more than "enforce" powers.
>> Under our proposal, the designator is also the vehicle for *exercising* a
>> number of the powers (e.g., approving/rejecting bylaws).  The exercise of
>> the new powers by the designator will be a much more common occurrence than
>> the enforcement of those powers by removing directors.  I anticipate the
>> latter will rarely (if ever) occur, though the fact it can occur is part of
>> our accountability framework.  There are other reasons for the Board to
>> comply with the community's exercise of its powers, aside from sheer terror
>> at being removed.  For one thing, these powers are enshrined in the bylaws,
>> and the Board (like any Board) will not take the prospect of violating our
>> Bylaws lightly.
>> We have had a tendency to overemphasize the enforcement end of things,
>> and I think this is one more action in that vein.  Let's try to avoid
>> that.  Just like our proposal is about far more than "enforcement," so is
>> the Single Designator.
>> So, no, your statement did not "close this particular item."  Rather, it
>> demonstrates exactly why this item is not really closed.
>> Greg
>> On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji at gmail.com
>> <javascript:_e(%7B%7D,'cvml','seun.ojedeji at gmail.com');>> wrote:
>>> On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc at gmail.com
>>> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>> wrote:
>>> >
>>> > I agree with the result the Board came to (at least in part), but not
>>> the reasoning.  Each SO or AC should have the right to inspect.  However,
>>> the role of the Designator is not merely to "add or remove Board members."
>>> The Designator plays a critical role in the exercise of several of the
>>> powers, in addition to its role in enforcing those powers via director
>>> removal.
>>> >
>>> SO: I guess Bruce was rightly mentioning the powers of the designator. I
>>> believe we we will only be getting those powers enforced as a result of the
>>> "add/remove" power of the designator.
>>> So in summary we don't get enforcement of the various powers because
>>> it's a role of the designator but on the basis that the designator may use
>>> its only statutory power, which is to add/remove board members.
>>> I generally agree with the result and would have even preferred that a
>>> threshold be required for inspection. However, on the basis that each SO/AC
>>> may need access to certain information to make informed/independent
>>> decisions, it makes sense to allow such right to each SO/AC.
>>> Hopefully this close this particular item.
>>> Regards
>>>   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
>>> >>
>>> >> _______________________________________________
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>>> >
>>> >
>>> >
>>> > _______________________________________________
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>>> >

Jordan Carter
Chief Executive, InternetNZ

+64-21-442-649 | jordan at internetnz.net.nz

Sent on the run, apologies for brevity
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