[CWG-Stewardship] Questions for "Outside Counsel"? -- REPLIES REQUESTED

[Milton L Mueller]

Now, turning to Seun’s/Maarten’s question:

Can an expert on Californian corporate law let us know if a bylaw can be used as the ultimate source by which an organisation like ICANN operate? and also whether a section of bylaw can be protected conditionally using another section of same bylaw
The intent of these questions is good, but the first question is not going to work as phrased. Of course corporate bylaws govern the way corporations like ICANN operate. But “ultimate source” is too vague a term; one could claim the bylaws are superseded by the Articles of Incorporation or by California State law or by the US Constitution.

I think what we want to ask is this:

Is it legally possible for a bylaw to empower a committee of a California NPPB Corporation that is NOT the board, or a subset of the board, to require the board to divest itself of a significant part of the corporation, even against the will of the board?

[I suspect very strongly that the answer will be No - ICANN has consistently argued that we cannot even have a binding independent review process under California NPPB law - but am more than happy to leave that to the experts.]

After that is made clear, you have to also ask:

Can the bylaws themselves can limit the ability of the board to modify the bylaws?

Mr Wilkinson might want to take special notice of the answer to that one, since he professes to be concerned about ‘capture.’ A captured ICANN board could make or unmake any bylaw they wanted.

Milton L Mueller
Laura J. and L. Douglas Meredith Professor
Syracuse University School of Information Studies
http://faculty.ischool.syr.edu/mueller/
Internet Governance Project
http://internetgovernance.org<http://internetgovernance.org/>

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