Hi, It is interesting. I don not think it was on the CCWG horizon until the Board brought it up as a consideration for the SM. We have since had extensive discussions on the fact that this power already exists in the Board's hands. We have also gotten advice that issues like this can be locked down in the SM model with bylaws requirement like: - must be triggered by the Board to even be considered - requires full consensus. I think the test both for closing the doors and for rejecting the closure of the doors can easily be covered for the SM model. Of course we have to formally discuss and agree upon measures for fixing the gaps in the SM model. We are still in the pre-discussion about whether and how to have the discussion. Now that is interesting. avri On 11-Oct-15 12:48, Seun Ojedeji wrote:
Hello,
I will like to hear how the scenario you indicated below will be different if it were SM model? Please bear in mind that board still have fiduciary responsibilities in both cases.
On a lighter note, is it not interesting(unfortunate) that self destruct scenarios is one the factors informing our proposal.
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 11 Oct 2015 17:31, "Rubens Kuhl" <rubensk@nic.br <mailto:rubensk@nic.br>> wrote:
The ICANN Board has proposed the Community IRP as binding arbitration. The CCWG’s attorneys have said that the Board can refuse to implement such a binding arbitration decision if it claims that to implement it would be a breach of its obligations to act in the best interests of ICANN. This is true BUT the community representatives can then go to court and a court will enforce the arbitration decision if it disagrees with the Board's view. In my opinion this is precisely the type of safeguard we need to have in place because it ensures that an elected board made up of representatives of the multi-stakeholder community will always act, first, in the interests of a stable and secure Internet and it puts in place an independent arbiter to decide, in the final analysis, if the community or the board is right.
Just a small stress-test on this: let's say that ICANN is behaving so erratically that the community asked for ICANN to dissolve itself. Board refuses, community goes to Community IRP and prevails. Board then refuses again, saying that fiduciary duties to the corporation prevent them from implementing that decision... when this matter goes to court, a court may say that the articles of incorporation indeed prevent the board from dissolving the company, no matter any reasoning to the contrary. The court might not have latitude to tell ICANN to do otherwise even if the court agrees with both the community and the IRP panel.
Rubens
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