I agree, although litagation may not be hampered by such costs, as many stakeholders can afford litagation costs if necessary. Board recall could provide a faster way, but litagation would provide more assurances to the litagator to be in control of the recall process rather than relying on votes from people, who would not otherwise be involved in any litagation, to recall a board member. Food for thought maybe. "Litigation is very unlikely, not only because of the time and cost associated, but also because Board recall would provide a faster way." Ron

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From: Jordan Carter <jordan@internetnz.net.nz>;
To: Mathieu Weill <Mathieu.Weill@afnic.fr>;
Cc: accountability-cross-community@icann.org <accountability-cross-community@icann.org>;
Subject: Re: [CCWG-ACCT] Recap of yesterday's discussion on the models
Sent: Tue, Oct 20, 2015 1:41:24 PM

This looks like a fair summary to me, Jordan On 20 October 2015 at 09:14, Mathieu Weill <mathieu.weill@afnic.fr> wrote: Dear colleagues, This is a recap of the discussion we have had yesterday, based on the summary I have provided at the end of the session. This is intended to capture the progress we've made to support our further work. ---------------------------------- Our group has agreed that Multiple Member or Designator options presented higher risks of capture and of complexity, and that arbitration based options (such as MEM) presented some legal uncertainties that the group preferred to avoid. We have focused our work on Sole Member and Sole Designator Models and started to compare them based on a list of criteria. The list of criteria discussed so far was : •Enforcement –Direct or Indirect enforceability –Worst case enforcement delay –Cost of worst case enforcement •Capture risk –Derivative action against Board –Right to dissolve organization –Balance between the various SOs or the Acs –Scope of issues whereBoardbusiness judgement is applied (fiduciary duty) •Transparency –Access to corporate records •Complexity –Necessity to create legal persons for SO/Acs –Necessity for individuals to act as legal persons –Ease of understanding –Ability to explain that the change is minimal The discussion has confirmed that : Member model provides direct enforcement of Separation recommendation CWG requirements could be met with either model Board can be constrained in the Designator model if a separation process is incorporated in the Bylaws CWG recommendations request a form of co-decision regarding Separation.  Going to Arbitration for some specific powers has some level of uncertainty both for Member and Designator models Member enforcement of the various powers implies a year of legal action IRP enforcement is not different in each model in terms of timing Litigation is very unlikely, not only because of the time and cost associated, but also because Board recall would provide a faster way. Our lawyers have been tasked to investigate whether and how the articles of Association could clarify that the Purpose of the organization includes the need to promote and enhance the bottom up multistakeholder model.  If so, this might align the duties of Directors with consensus decisions by the community. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@internetnz.net.nz  Skype: jordancarter Web: www.internetnz.nz  A better world through a better Internet