Reconsider/

Reject Board

Decisions

Relating to

Reviews of the

IANA Functions,

Including Ability

to Trigger a

Separation of

PTI

•Sole Membergiven reserved power under Bylaws to override Board decision, regardless of Board fiduciary duties.

•Sole Member decides whether to act via community voting mechanism, with specified participation level and voting threshold for action.

•Sole Memberhas standing to enforce this right; direct enforceability by Sole Member.

•

•Sole Designator given right to trigger Board consultation up to specified number of times, with Bylaw restrictions subject to override if required by Board fiduciary duties.

•Sole Designator decides whether to act via community voting mechanism, with specified participation level and voting threshold for action.

•Sole Designator has standing to enforce consultation right; direct enforceability by Sole Designator.

•If Sole Designator objects to Board final decision, can initiate process to remove individual directors or recall the entire Board.

•Bylaws would require Board to implement recommendations, within limits respecting Board fiduciary duties.

•Community, through SO/ACs, can initiate process to recall Board if it fails to implement recommendations.

•If Board ignores Bylaws requirements (set forth in Fundamental Bylaws), SO/ACs may invoke MEM process, including forming MEM Issue Group (composed of SO/ACs) to bring action in California courts; MEM Issue Group capacity to sue unclear under Proposal or relevant law; unclear what if any legal recourse community has if Board determines that Bylaws requirements are inconsistent with Board’s fiduciary duties.

All, the above is one key area of concern to me, the ability to enforce the separation of PTI is a key cornerstone of the combined transition work. I believe that there is a genuine argument that separating PTI may not be in the fiduciary interest of the board and that not having community enforceability in such a situation should be one of the points that we cannot move or compromise on. The analysis above goes further in confirming my suspicions and assertions that a membership model is the only way we may gain this key part of our accountability enhancements. This is something that we should bear in mind as we work towards and in Dublin.

-James Gannon

From: <accountability-cross-community-bounces@icann.org> on behalf of Mathieu Weill
Reply-To: "Mathieu.Weill@afnic.fr"
Date: Tuesday 29 September 2015 11:26
To: "accountability-cross-community@icann.org"
Subject: [CCWG-ACCT] Fwd: Key Characteristics Comparison with Sole Designator Model

Dear Colleagues,

Please find attached an updated comparison chart of the various models, provided by our lawyers.

Best
Mathieu

-------- Message transféré --------

Sujet :	Key Characteristics Comparison with Sole Designator Model
Date :	Tue, 29 Sep 2015 03:29:27 +0000
De :	Emily Chan <echan@adlercolvin.com>
Pour :	Thomas Rickert <thomas@rickert.net>, Mathieu Weill (Mathieu.Weill@afnic.fr) <Mathieu.Weill@afnic.fr>, León Felipe Sánchez Ambía (leonfelipe@sanchez.mx) <leonfelipe@sanchez.mx>
Copie à :	ICANN-Adler <ICANN@adlercolvin.com>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com>

Dear Co-Chairs,

Please find attached an updated version of the Key Characteristics Comparison slides that Rosemary and Holly sent on Saturday which renamed the Sole Designator model as the Community Mechanism for Shared Governance model. This updated version reverts the name of the model to the Sole Designator model.

Best,

Emily

=====

Emily Chan

Adler & Colvin
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