Dear all, I am forwarding counsel answer to the question: Can the IRP be binding either by statute, contract or otherwise? This will surely help us in our discussion on point 6.4 of the Draft report in the call that is ongoing. Best regards, León
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Para: "'ccwg-accountability5@icann.org'" <ccwg-accountability5@icann.org> Fecha: 23 de abril de 2015 14:12:21 GMT-5 De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> Asunto: [Acct-Legal] IRP question Responder a: ccwg-accountability5@icann.org
Dear CCWG and Legal Subteam,
Below please find the Sidley and Adler & Colvin response to the question assigned in the email that follows regarding the potential binding effect of the IRP:
Yes, the outcome of the IRP process can generally be binding against all parties who have agreed to its terms, subject to two exceptions discussed below. · The agreement to be bound by the IRP process would be expressed in the ICANN Bylaws, applicable to the Board, directors, officers, staff, and members or designators; it would also be part of any separate contract among the members or designators pertaining to ICANN governance. · Any third party that agreed to be bound by the IRP process could also use the mechanism. · Judgments of the IRP functioning in a manner constituent with the Federal Arbitration Act would be enforceable in the U.S. courts (and <> in the courts of other countries that accept international arbitration results). · Two exceptions exist: 1. Members. Those specific matters reserved to the members of the entity in the articles or bylaws. For example, if the budget is reserved to final approval of the members, and the members chose to overrule the Board on the budget, then the members would have the final word and IRP could not arbitrate the budget. If the members, and not the Board, are to decide an issue, then the IRP process would not apply because the power of the members is superior to the powers of both the Board and the IRP, based on the bylaws established by the members. 2. Board Fiduciary. Those matters that are so material to the Board that it would undermine its statutory obligations and fiduciary roles to allow the IRP to bind the board. The Board cannot contract with another party to have its exercise of management responsibilities arbitrated. These exceptions exist because some fundamental limits on the jurisdiction of the IRP are necessary to avoid having the IRP become unaccountable. If such a quasi-judicial function had unlimited jurisdiction, it could effectively become a super-board or a super-member (but without all the checks and balances that have been laboriously developed by the CCWG). Even in areas at the core of ICANN governance, however, the IRP could issue advisory rulings that would need to be reviewed and considered in good faith by the Board. Holly J. Gregory Sidley
] -----Original Message----- From: ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org>] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam Sent: Thursday, April 16, 2015 9:11 AM To: ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] IRP question
Counsel,
As discussed in our call yesterday and with the prioritization set in mind, can I kindly ask you to provide us with a high level and very concrete answer on whether the IRP can be binding whether by statute, contract or otherwise?
This will help us a lot on our discussion in our Tuesday call.
As always, we appreciate your work under pressure.
Best regards,
León
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