Hi Kavouss, I will discuss with Rosemary and respond later today. Of course we have deep respect for you and the CCWG. Kind regards, Holly Sent with Good (www.good.com) ________________________________ From: Kavouss Arasteh Sent: Wednesday, January 27, 2016 08:44:38 AM To: Seun Ojedeji Cc: Rosemary E. Fei; ACCT-Staff; Gregory, Holly; Sidley ICANN CCWG; Thomas Rickert; accountability-cross-community@icann.org; ICANN-Adler Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote " does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " Empowred Community"/" Sole Designator " in regard with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss 2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Hello Kavous, I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal). I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained). Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss 2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Thanks a lot Rosemary that answers my question perfectly. Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>> wrote: Dear Sean and all: You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws. The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers. I hope that answers your question. Rosemary From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>] Sent: Tuesday, January 26, 2016 9:41 PM To: Holly Gregory Cc: Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; León Felipe Sánchez Ambía; Mathieu Weill Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Thank you Holly for the clarification. This has been my understanding as well. One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw. In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw). Regards On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms. We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email. “Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date. As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept. Kind regards, Hlly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Monday, January 25, 2016 11:42 PM To: Jordan Carter Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws Recommendation 1 states: . The entity created using the Sole Designator model will be referred to as the “Empowered Community.” (Summary, Page 1, bullet point 3). In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists. Greg On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: 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 resolve. Cheers Jordan On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@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@gmail.com<mailto:gregshatanipc@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@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@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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