Cheers,

Chris

On 22 Sep 2015, at 23:07 , Avri Doria <avri@acm.org> wrote:

Hi,

I would prefer that we avoid needing to use the courts for that purpose.

One of the things I argued for in the development of the CM is that
relying on the courts would always be as a last resort.  Not the initial
guarantee.  For the multistakeholder model to work we need to resolve
the accountability issue within the expanding community as much as possible.

This easy resort to US courts is something I find problematic.  If the
Board's response to an disagreement is "take us to court if you don't
like it," we will have failed.

avri


On 22-Sep-15 08:55, Chris Disspain wrote:

Avri,

But under the MEM and under the sole member model the ultimate arbiter
of that would be the courts in California. No?



Cheers,


Chris

On 22 Sep 2015, at 22:51 , Avri Doria <avri@acm.org
<mailto:avri@acm.org>> wrote:

Hi,

I think that the fiduciary responsibility does not change.  What changes
is whether the Board has unilateral and final control of the meaning and
implications of its fiduciary responsibility  or of the decisions based
upon that vision.

avri

On 22-Sep-15 08:43, Samantha Eisner wrote:

Jordan, can you please elaborate more on the “different fiduciary
duty” situation that you refer?  As I understand it, the fiduciary
duties of the Board do not change whether a member is present or not.  

Thanks,

Sam

From: <accountability-cross-community-bounces@icann.org
<mailto:accountability-cross-community-bounces@icann.org>
<mailto:accountability-cross-community-bounces@icann.org>> on behalf
of Jordan Carter <jordan@internetnz.net.nz
<mailto:jordan@internetnz.net.nz>
<mailto:jordan@internetnz.net.nz>>
Date: Tuesday, September 22, 2015 at 5:15 AM
To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>
<mailto:ceo@auda.org.au>>
Cc: "Accountability Cross Community
(accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>
<mailto:accountability-cross-community@icann.org>)"
<accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>
<mailto:accountability-cross-community@icann.org>>
Subject: Re: [CCWG-ACCT] MEM and enforceability

Hi Chris, all:

The second is not the same with the single member model. As has been
outlined on list before, the different fiduciary duties situation that
exists with membership solves that problem.

On the first, the plan of the CCWG has been binding not advisory IRP
so I don't think that it is the same, no.

On the third, that does seem a sensible time frame constraint...

best
Jordan


On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au
<mailto:ceo@auda.org.au>
<mailto:ceo@auda.org.au>> wrote:

  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
<mailto:dmcauley@verisign.com>
  <mailto: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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