Hi Chris,

I am not sure that they are the same but will comment back after this morning’s call.

David McAuley

From: Chris Disspain [mailto:ceo@auda.org.au]
Sent: Tuesday, September 22, 2015 8:06 AM
To: McAuley, David
Cc: Accountability Cross Community (accountability-cross-community@icann.org)
Subject: Re: [CCWG-ACCT] MEM and enforceability

Hello David,

I appreciate the constructive criticism 😀.

Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?

Cheers,

Chris 

On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com> wrote:

I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.

However, I have, with respect, three critiques of it.

First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.

Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion. 

And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.  

David McAuley

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