Dear All, The notes, recordings and transcripts for the Legal Subteam #14 - 29 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52898035 Action Items Action: Leon, check if Sam's questions answered by counsel. Action: check reference mechanism is defined in the document Action: Robin and Greg draft text on these clarifications, to provide suggested wording. Notes 1. Welcome and roll call Roll call: Sam Eisner on the phone 2. Discussion on suggested text by Robin and Izumi on point 6.6.1. Comments from Jordan on 6.1.1.1 Jordan's text. point 4. Legal advisors. No increase in risk ICANN participants face Q. What are the risks. and are participants covered. Becoming a UA may highlight those risks. What are they? Raise when Counsel present in second part of the call For discussion with counsel, review now so we can ask more specific questions/examples. Concern about financial risk, legal risks and liabilities, but also need to think about the internal risks to ICANN. examples of the internal risks: relationships between the groups, how the switch to member model impacts that. Member statues and his they work. Individual members are granted rights under the statue that are hard to modify. And we have the community consensus based actions, and there are other rights that are not limited by community actions. Some unintended rights. And request more information from Counsel. Support for Jordan's draft. Izumi agreeing to the text. Does what we have proposed reflect their advice? And does it reflect the strength of their advice? Reference model/mechanism. has it been defined in the report. Our primary model in the proposal. Action: check reference mechanism is defined in the document Designator model, and the powers regarding budget and strategic plan. Received advice that would have problem delivering these two powers Enforce has some ambiguity in the document. Some refer to is it valid, and some whether can cause a change a control. Some varied use of the word enforcement throughout the document. Legal counsel again and again say it is the enforceability of these two issues that is causing us to accept the member model. Member model because this is how we enforces these two issues. Action: Robin and Greg draft text on these clarifications, to provide suggested wording. And input from counsel first. Including on the meaning of enforceability. Status quo. Some may argue that it is a designator model. If discuss why the status quo why not preferable to an explicit designator model or member model. And why. Explaining that they can take on some of the attributes of the designator model. Explain to the community why we made these decisions we did, bring them along so that if they follow our line of agreements they end up with the same conclusions. Some duplication about NTIA, from paras 2 or 8. And leave the rest in to explain our rationale. 3. Review of questions pending answers Pedro, Jorge's questions are pending. Sam's questions: will check that the answers received. Action: Leon, check if Sam's questions answered by counsel. Eberhard Lisse's questions about the legal basis for the USG claim on the root. Was reviewed by the sub-team on a call of April 8. And not considered on topic. Since on the list, Becky Burr has given a comprehensive answer. Leon, speaking as a member to chair, said he feels out of scope. Do people have comments? Out of scope. Does not affect ICANN accountability. And likely not germain to CWG. Out of scope for the expertise of the legal counsel engaged. A distinguished panel might be able to inform, for example Milton Mueller. But this beyond the scope Unfortunate that Dr. Lisse has not been able to join the call to explain why the question is fundamental and in scope. His comments would have been very welcome. To bring to a close, suggestion for a definitive conclusion on the record as a decision of the legal sub-team. Is this out of scope for the CCWG. Please signal with a green tick. Decision: the group indicates out of scope. 4. Discussion on implementation of the CCWG draft report Any comments wrt to the general CCWG report and legal issues? 5. Discussion on overall draft document for public comment Confirmation - can we have SO and AC and the NomCom as unincorporated with different powers, including as zero votes.? 6. Discussion with lawyers Para 7 of the document (from Jordan) in the AC room. The level of certainty around the powers designators can have and can they be enforced. And do we currently have a designator system? Do we need to take on UA which take on some of the characteristics of the SO/AC? We adopt this model because it brings these additional 2 powers. Walk the community through our thinking that of the 6 powers 2 are tricky under the designator model. Advice is that if you want a true and robust designator model you need to be a legal person. And under the status quo it is hard to label under corporate law, they lack the rights associated with a designator model. If want to avoid the difficulties of UA, then will end with a weak model, and unenforceable. The member model provides the clearest path to the mechanism we want to put in place (not control of the board) Under current bylaws, could the So AC remove their Directors as designators, could it be enforced? Not clear how a court would respond. Would have to convince a court that you had the powers. SO/AC not legal persons, so who would go to court? Directors and Officers have standing, they could make the argument before the court, so would need to persuade a director or officer to go to court. Current SO/AC. Can we revise the bylaws to make them more like designators? Yes, can do that. But to give them the powers need to be UA. The bylaws and fundamental bylaws, remove directors and while board (with some contract) Possible. But the power to reconsider/reject the budget and strategic plan only though member. And would create some issues for the IRP. If these two powers are desired, then the member path is how to archive this. Summary chart of powers will be included in the document. If the GNSO names a director, conceivably the board might say you don't have the power to do that? If the bylaws amended to say SO/AC have recall powers, the director can refuse to stand down saying lack of enforceability under CA law. These types of issues are examples of what the powers protect against and the mechanisms allow. Do we have to create UA to archive all these powers? What can be achieved if not created as UA? "powers" Lawyer will say how to enforce. But if, as under the current bylaws, you make rules that people agree to follow, but are not enforceable, then that is fine. But, there are some powers that would not be legal. Cannot take away from the board decisions related to its fiduciary duty, such as budget and strategic plan (inaudible) Naming a person to represent. as a middle ground approach (check AC at 1:18) Suggestion for the CCWG report. does a member of the SO implicitly be member of the unincorporated association. Some have comment that govt may struggle in this regard The law requires at two persons associate. once beyond that, law says that the entity can create its own rules about who is part of it. Who can join, Can allow any mechanism for the people to associate with the association. And these can be as loose or tight as you wish. Suggestion is to take whatever is in the current bylaws. Just piggyback in that. The articles of association just point to that. But do need to persons to become part of the unincorporated association. Would it be possible to have a ccTLD participating in the decisions of the ccNSO but not consider a member of the UA. The UA can make its own rules. It does not require you consider them a member Could, it be disregarded in litigation outside CA. unincorporated association vary a lot even within the US. In all 50 US states, unincorporated association are not novel, and can sue or beside. And CA has pretty robust protections from liability. In the US it could sue and be sued in the US. Outside the US: significant work to research this. Most who need to rely on the protections will never set foot in the US. March 18 memo from Sidley. However... a number of non US jurisdictions do not recognize unincorporated associations and loom thru the UA at the individuals as having liability Context: about the transition. Issue here, how to give power to the community vis a vis the board/ICANN. That issue governed by CA law.
From a stress test issue. What statutory given rights given to an individual member, and how are they balanced against community rights. How are they constrained. Do individual members have controller the affairs of ICANN.
Exposure in other countries If you want to bring an action against ICANN need to be in a jurisdiction where it has an office. Could look at the 7 countries where there is an office and see how they would resolve the choice of law question On the rule decision issue. Should it extend to other law or only relate to the bylaws Out sourcing the IRP panel, to the ICC etc. Might be outsourced as a secretariat function. Lawyers can suggest language. Standing, people need to agree on accepting the arbitration. Geographic diversity, but no specification of the location. Will it be virtual, or based at an office location. Q. can we have SO and AC and the NomCom as unincorporated with different voting powers, 5:2, 4:2, 4:0 etc. Feasible? Voting on what (e.g. a petition) Differential voting power - yes. proposed that each member would be sole class of member. And each would have a set number of seats. And they don't come together to do that. How long to implement UA and have in place. Once docs drafted it can be a quick process and can help with the document drafting Greg and Robin to provide clarifying text? Yes END