Like us all, it has feet of clay.
On 27/01/16 20:56, Greg Shatan wrote:
Jordan,
Succinct and accurate. Thank you.
I will just emphasize and reiterate one part of your message: The
Empowered Community "has all the powers we will give it through the
ICANN bylaws" including the power to appoint and remove directors.
Since this last power is defined by California statute as the
"designator" right, we have been calling the "Empowered Community" the
"Sole Designator," and vice versa.
If one wants to see the "powers" of the Empowered Community/Sole
Designator Entity (ECSDE?) one just needs to look at the community
powers in our proposal. Where the community comes together (more or
less) as one, that's the ECSDE.
Of course, we should come up with a better name for this and use only
one name rather than two, which has sowed confusion. One suggestion:
Good Old Legal Empowerment Mechanism (GOLEM).
I feel this is all clear.
Greg
On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan@internetnz.net.nz
<mailto:jordan@internetnz.net.nz>> wrote:
Dear all, dear Kavouss
I don't feel any questions on my part are missing.
I am clear and I think from this whole thread, it is clear to
everyone that there is one entity - the Empowered Community. It is
established as an unincorporated association, and it has all the
powers we will give it through the ICANN bylaws. One of those powers
is appointment and removal of directors. It can back those powers up
in Court if need be because it is recognised as a Designator under
the law of California.
So: the powers are set out in the bylaws as per our report. The
single entity is the Empowered Community. It is the Sole Designator.
I'm happy and don't need any legal input, and my reading is that we
are all on the same page.
bests
Jordan
On 28 January 2016 at 03:44, Kavouss Arasteh
<kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:
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____<mailto:Accountability-Cross-Community@icann.org>
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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