October 2015 - Accountability-Cross-Community

For Enforcement Model small group on Saturday - Tables & Plan B slides
by Jordan Carter Oct. 17, 2015

Oct. 17, 2015

Hi everyone One of the small grounds meeting tomorrow is to deal with the Enforcement Model. We anticipate the group will probably be asked to focus on testing the two central models (Single Member and Single Designator) with a focus on the two powers that attracted most discussion this morning. That is: - separation review outcomes - IRP The attached documents essentially include the output the lawyers were tasked with with "Plan B", too. They are as follows: - summary table of enforcement issues under all four models (status quo, MEM, Single Designator, Single Member) - the full detailed table of enforcement issues under all four models - a "three column" table that is the summary, just for Single Designator and Single Member (*the most useful working doc to look at*) - a powerpoint set of slides that details other aspects of the "Plan B" which is Single Designator plus a governance review. I encourage those interested in these issues to look at these documents, whether or not you can or will attend the small group session. best, Jordan

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Individual Removal process concerns (was: Re: Breakout sessions - Pictures of outcome)
by Seun Ojedeji Oct. 17, 2015

Oct. 17, 2015

Dear Co-Chairs, I just like to raise here that the reviewed process for individual board removal does not reflects the fact that we all recognize that once a board member is appointed to the board, he/she represents/acts in the interest of the entire community(and of the organisation). It is just not ideal for appointing board member to remove its board member in a setup like ICANN, since we recognize that they are representing the entire community but just bringing their respective SO/AC experience to the board. Its also not proper considering that there are board members that are not directly appointed by individual SO/AC(nomcom appointees) which will imply different removal process for members within the same board. That said, it is my hope that the community is recognizing that we are setting loose processes that does not keep the community itself accountable; we set air-tight processes and requirements to keep the board accountable yet we try to set rules that are less inclusive for ourselves. Overall it seem its only what we think is right that is acceptable and not necessarily what the law says, because its definitely not a legal requirement that appointing members only should have the removal rights. Hopefully we will not all dwell so much on legal norms(on edge cases) as we set processes for board's accountability. Regards On Sat, Oct 17, 2015 at 10:59 AM, Alice Jansen <alice.jansen(a)icann.org> wrote: > Find attached. These will be made available on the wiki. > Thanks > Best > Alice > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > -- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji(a)fuoye.edu.ng <seun.ojedeji(a)fuoye.edu.ng>* Bringing another down does not take you up - think about your action!

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Re: [CCWG-ACCT] Summary words from engagement meeting
by Jordan Carter Oct. 17, 2015

Oct. 17, 2015

Thanks Desiree - copying to list for the record and to share your thoughts. J On 17 October 2015 at 12:19, Desiree Miloshevic <dmiloshevic(a)afilias.info> wrote: > Jordan > > Myself, like Malcolm has said, have come out of our Enforcement model > breakout session thinking that in the end there is not a huge advantage of > the Sole Membership model > over the Single Designator Model. > > However, we should explore other opportunities. For example we have not > discussed enough the indirect Enforcement - the spill of the board > as that may end up being a faster and more efficient way than court > proceedings, that would, in the end, keep deciding if something is > a fiduciary duty or not regardless of potentially reserved membership > statutory powers and regardless of what the board suggests. > > Desiree > -- > > On 17 Oct 2015, at 12:00, Jordan Carter <jordan(a)internetnz.net.nz> wrote: > > Here are my notes as outlined at the meeting, for the record: > > 1. We focused on IRP, because PTI would end up in an IRP. > > > 2. IRP enforcement process is the same regardless of the model. If after > arbitration award is granted, losing party objects, prevailing party must > go to court for enforcement of arbitration award > > > 3. In both models there is a legal person - the sole designator or member > - that can be party to IRP if required. > > > 4. In either model, fiduciary duties are important and have the effect of > limiting the scope of what can be arbitrated in an IRP setting. > > > 5. In the member model the board is limited in asserting that its action > was protected as a fiduciary business judgment as to community powers > reserved to the sole member. (That is, the scope of issues properly subject > to arbitration is therefore broader in member model.) > > > 6. Preferences were split among those present between the two models. > > > 7. My personal preference on this dimension angles slightly towards the > member model, because it provides for stronger enforceability of the > community powers through the IRP or generally - that is, as said, it does > that by removing the possibility of ICANN arguing that enforcement of those > powers conflicts with fiduciary duties and so cannot be arbitrated. > > -- > Jordan Carter > > Chief Executive > *InternetNZ* > > +64-4-495-2118 (office) | +64-21-442-649 (mob) > Email: jordan(a)internetnz.net.nz > Skype: jordancarter > Web: www.internetnz.nz > > *A better world through a better Internet * > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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Re: [CCWG-ACCT] Question on binding IRP
by León Felipe Sánchez Ambía Oct. 17, 2015

Oct. 17, 2015

Dear Ed, Thank you very much. That was fast! Best regards, León > El 16/10/2015, a las 8:23 p.m., McNicholas, Edward R. <emcnicholas(a)sidley.com> escribió: > > > Please use this version. > > León – > > Holly and Rosemary asked me to respond to the question about whether an entity that has no legal personhood ( i.e., is not an unincorporated association, partnership, corporation or natural person) can enter into binding arbitration under California law or applicable federal law. It is important to emphasize that the issue involves binding arbitration. Nonbinding arbitration and mediation proceedings can involve any sort of entity. Ultimately they are not intended to be binding or enforceable, and so there is no significance to whether an entity could be bound or bind another entity in that context. > > In contrast, if arbitration is intended to be binding, then the entity involved must be subject to be being bound itself and be able to bind the other entity. Unless the losing party complies after the arbitrator’s decision, arbitral awards must be taken into a court and recognized in a court judgment in order to enforced. Ultimately, arbitration relies upon the courts for enforcement; and courts must examine whether they are dealing with a legal entity. The legally significant point is whether a non-legal person can enforce an arbitration award, and the answer to that question is “no.” Federal Rule of Civil Procedure 17(b) (3)(A) provides that “a partnership or other unincorporated association with no . . . capacity under that state's law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws.” This Rule does not – and cannot – bestow capacity to sue on a non-legal person when that non-legal person tries to enforce a substantive right, and we are not aware of any case that stands for that proposition. SO/ACs will need to demonstrate legal personhood to enforce an arbitration agreement (assuming that they are either parties themselves to the arbitration agreement or third-party beneficiaries). > > There was a question about whether some case law suggests that even if an entity lacks legal personhood and therefore cannot enforce an arbitration award under state law, Federal Rule of Civil Procedure 17(b) permits that entity to sue in federal court because arbitration is a “substantive right.” Specifically, some case law indicates that an entity lacking capacity to compel arbitration or enforce an arbitration award in its own name under state law may in some circumstances do so under Rule 17(b). See, e.g., O & Y Landmark Assocs. of Va. v. Nordheimer, 725 F. Supp. 578, 581 (D.D.C. 1989) (finding that a partnership seeking to compel arbitration had capacity even though D.C. law did not recognize such); Local 4076, United Steelworkers of Am. V. United Steelworkers of Am., AFL-CIO, 327 F. Supp. 1400, 1403 (W.D. Pa. 1971); see also Day v. Avery, 548 F.2d 1018, 1022 (D.C. Cir. 1976) (recognizing arbitration as a substantive right), Laundry, Dry Cleaning & Dye House Workers Int’l Union v. Mahoney, 491 F.2d 1029 (8th Cir. 1974) (enforcing arbitration in an equally divided concurring opinion). None of these cases, however, suggest that an entity entirely lacking legal personhood may file suit in federal court simply because the right to arbitrate is at issue. Rather, Rule 17(b) lets the partnership, union, or other unincorporated association – each a legal person – sue in its name, as opposed to forcing its members to sue in theirs. It bears emphasis that in each instance these entities were legal persons. For instance, in Local 4076, Pennsylvania law did not allow the local union to sue in its own name because its charter had been cancelled, requiring instead that the suit be filed in the name of a member or members as trusteesad litem for the association. 327 F. Supp. at 1403. Rule 17(b) overrode this pleading requirement. Id. Mahoney dealt with a similar issue. In each of these cases, an entity with legal personhood existed at some point; the question was whether the entity itself or the individual members must be the nominal party in the suit. > > The question of legal personhood is a key enforcement issue for any model that relies on individual SOs and ACs for enforcement. It would be necessary for the SO/ACs to show that they are unincorporated associations (or some other type of legal person) to enforce any arbitrator’s award. In California, that is an uncertain test: whether there is a “group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not.” Cal. Corp. Code § 18035(a); see also Cal. Code Civ. P. § 369.5. “The criteria applied to determine whether an entity [is capable of suing or being sued as] an unincorporated association are no more complicated than (1) a group whose members share a common purpose, and (2) who function under a common name under circumstances where fairness requires the group be recognized as a legal entity.” Barr v. United Methodist Church, 90 Cal. App. 3d 259, 266 (Cal. Ct. App. 1979). And at least some courts have recognized that an “organization” that “has no charter, by-laws or articles, no office or place of business, no mailing address, no bank account, no assets or obligations, and has never transacted business” as an entity – is not an unincorporated association with capacity to sue or be sued. Cal. Clippers, Inc. v. U.S. Soccer Football Ass’n, 314 F. Supp. 1057, 1068 (N.D. Cal. 1970). In our case, some SO/ACs have indicated that they do not view themselves as unincorporated associations, and, in that case, it would involve a significant risk to enforceability to suggest that they could enforce an arbitration award. Of course, if an unincorporated association exists or is timely created, it is a legal person and there will be no problem with lack of personhood; this email is only to be clear that lack of personhood is problematic. > > Please note that, as a general matter, this legal analysis is provided on a level in keeping with the question posed. Our legal analysis is tailored to the context in which the particular question arises. It is provided to inform and help facilitate your consideration of the governance accountability models under discussion and should not be relied upon by any other persons or groups for any other purpose. Unless otherwise stated, our legal analysis is based on California law and in particular the laws governing California nonprofit public benefit corporations (California Corporations Code, Title 1, Division 2). In our effort to respond in a limited time frame, we may not have completely identified, researched and addressed all potential implications and nuances involved. > > Please let us know if there are any questions or concerns. > > All the best, > > Ed > EDWARD R. McNICHOLAS > Partner \ Privacy, Data Security & Information Law Practice Co-Leader > Sidley Austin llp > 1501 K Street, N.W. > Washington, DC 20005 > 202 736 8010 office > From: León Felipe Sánchez Ambía [mailto:leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>] > Sent: Friday, October 16, 2015 2:49 PM > To: Gregory, Holly; Rosemary E. Fei > Cc: ACCT-Staff; Sidley ICANN CCWG; ICANN-Adler; Accountability Cross Community > Subject: Question on binding IRP > > Dear Holly, dear Rosemary, > > One key question that has been in the air and I believe is important to answer is the following: > > Does an entity that has no legal personhood ( i.e., is not an unincorporated association, partnership, corporation or natural person) can enter into binding arbitration under California law or applicable federal law? > > Could you please guide us on this issue. This, of course, certifies this question for you to work on it. > > > Best regards, > > > León > > > > **************************************************************************************************** > This e-mail is sent by a law firm and may contain information that is privileged or confidential. > If you are not the intended recipient, please delete the e-mail and any attachments and notify us > immediately. > > **************************************************************************************************** >

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Schedule for the week
by Grace Abuhamad Oct. 17, 2015

Oct. 17, 2015

Dear all, Brenda sent you calendar invites for each CCWG-Accountability session at ICANN54. In addition, attached is a schedule (prepared by Hillary) that shows all the Transition-related sessions at ICANN54. The CCWG-Accountability sessions are displayed in green color. For the full ICANN54 schedule, please see: https://meetings.icann.org/en/dublin54/schedule-full If you would like, ICANN is launching a mobile app for the meetings which you can download here: meetingapp.icann.org <http://r20.rs6.net/tn.jsp?f=001pSyK56PHFkZShA-X3yd4M3nh7XaVR0wWLl21x3g7ZzMV kTgUYguEFG8hWwAS51JkFn3eHVBuOxbI6nSxpu3weoPnFNtOnGOeTj7jE5ONNE7CC3HLTVLBuIQ9 mwqos9Qvh2dOKXnjPXzKSjpj7D-Ol6PMxwXvf_OwBbswJG0bbynL_EtWdQghFvRK_RHcN4rv&c=y EOqfOwu8Vl_fOLk2mEkQCxAT76tlC3v4euuxVO13pSYWi5jRVS3-w==&ch=6urKhtTZR6iUbQGlz K64rGeYHYK7SrJNrXOPy0eBxLe78DKRwd1Mbg==> . Best, Grace

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[SOI update] Full disclosure on the way to Dublin
by Mathieu Weill Oct. 17, 2015

Oct. 17, 2015

Dear Colleagues, Last week, I have had the honour to receive, along with Lise Fuhr, co-chair of the CWG Stewardship, a CENTR Award for our respective contributions in the IANA Stewardship transition process. Since this was a closed meeting, I have decided to update my statement of interest before I get any objection based on infringing due process or, worse, the obvious lack of lucidity of the CENTR community. You will find in the attached blog a video which captures the strong and unconditional support we received from several group members as well as my acceptance speech. It is entitled "Accountability and IANA transition: behind the scenes" https://www.afnic.fr/en/resources/blog/accountability-and-iana-transition-b… Best, Mathieu

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Summary words from engagement meeting
by Jordan Carter Oct. 17, 2015

Oct. 17, 2015

Here are my notes as outlined at the meeting, for the record: 1. We focused on IRP, because PTI would end up in an IRP. 2. IRP enforcement process is the same regardless of the model. If after arbitration award is granted, losing party objects, prevailing party must go to court for enforcement of arbitration award 3. In both models there is a legal person - the sole designator or member - that can be party to IRP if required. 4. In either model, fiduciary duties are important and have the effect of limiting the scope of what can be arbitrated in an IRP setting. 5. In the member model the board is limited in asserting that its action was protected as a fiduciary business judgment as to community powers reserved to the sole member. (That is, the scope of issues properly subject to arbitration is therefore broader in member model.) 6. Preferences were split among those present between the two models. 7. My personal preference on this dimension angles slightly towards the member model, because it provides for stronger enforceability of the community powers through the IRP or generally - that is, as said, it does that by removing the possibility of ICANN arguing that enforcement of those powers conflicts with fiduciary duties and so cannot be arbitrated. -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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U.S. Government IANA Stewardship Transition Project Costs
by Hillary Jett Oct. 17, 2015

Oct. 17, 2015

Hello all, As noted yesterday during the CCWG-Accountability working session, we have developed a web page on the ICANN website to track costs associated with the U.S. Government IANA Stewardship Transition Project. The project scope of the costs included are the IANA Stewardship Transition Coordination Group (ICG) work, the Cross Community Working Group on Naming Related Stewardship Functions (CWG-Stewardship), the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) and any implementation work. Web page: https://www.icann.org/resources/pages/iana-stewardship-project-costs-2015-10 -16-en The cost categories include the cost of staff support, travel and meetings costs, professional services (including legal advice), and administrative costs. The costs disclosed are exclusively direct costs and do not include any overhead allocation. The costs information included here is published quarterly, starting in October 2015. Thank you, Sent on behalf of Xavier Calvez -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org

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Breakout sessions - Pictures of outcome
by Alice Jansen Oct. 17, 2015

Oct. 17, 2015

Find attached. These will be made available on the wiki. Thanks Best Alice

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Outline of Oct 17 session - break outs
by Mathieu Weill Oct. 17, 2015

Oct. 17, 2015

Dear Colleagues, Our next session will start at 8.30 on Oct 17, in the same room where we were today. There will be four breakout groups taking place in parallel in the room, facilitated by XPLANE : Group 1: decision-making (led by Steve DelBianco) Group 2: enforcement model (led by Jordan Carter) Group 3: removal of individual Board directors (Mike Chartier) Group 4: budget & strategic plans (Jonathan Zuck) Remote participants will form a fifth group that will also work on budget & strategic plans (led by Grace Abuhamad). The terms of reference for each group are in the attached document. We look forward to your constructive contributions to this crucial exercice tomorrow. Best regards, Thomas, Leon & Mathieu

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