Bruce: This is helpful, but, I think, your answer confirms my reservations regarding the careless use of the fiduciary terminology. Directors have a fiduciary duty to the Corporation, not to an amorphous 'internet community'. In fact, under trust law and Equity, one cannot hold something on trust for such a beneficiary as the "internet community as a whole" since the object towards which one has the fiduciary duty (that is to say, the owner of the ultimate property) cannot be identified with sufficient precision. This was discussed in the English case of The Queen -v- District Auditor (on the application of West Yorkshire MCC). As an English case, this would persuasive precedent in California only to the extent that there are no California case or statutory provisions, so I do not submit this as being decisive of the question. But it's certainly on on point, and remains influential precedent throughout those countries whose legal systems have have equitable jurisdictions (such as the USA, Canada, UK, and former British colonies) and include trusts and fiduciaries. The differences between a fiduciary duty and an ordinary duty of care are reasonably well understood. Indeed, my home jurisdiction, as it is a global financial centre has chosen to regulate, at a fairly detailed level, the activities of professional fiduciaries. As a former Board member of a similar (national) organisation to ICANN, of course, I understand the need for, and the nature of the training you refer to. But I sumbit the nature of the Directors' duty you refer to, is towards the corporation, in the pursuit of the goals set out in the Articles, and NOT towards the internet community, as such a duty would be regarded as legally unworkable. Thus a director should act in the best interest of the corporation. If a director proposed the corporation become a promoter of the next Kylie Minogue tour, or a producer of a Hollywood movie, he or she would be acting ultra vires their fiduciary duty -- as this is not in accordance with Arts. 3 or 4. But hiring Ms Minogue to perform at the next ICANN Gala in London or New York in pursuit of the corporations normal goals, might not be ultra vires, depending on a number of factors specific to the occasion, including price, and whether it advanced the goals in Arts 3/4. Nigel PS: An ICANN Director's fiduciary duty to the corporation should not override the reason he or she was seated by an SO or AC -- which is, IN THE PURSUIT of the corporation's public benefit role, to provide the perspective of the section of the community that seated them. So while a Director has a fiduciary duty to the corporation this does not extend to a prohibition on representing the views of their particular section of the community, and voting accordingly, so long as they do not so capriciously or ultra vires the Articles. On 03/10/15 23:54, Bruce Tonkin wrote:
Hello Nigel,
From the link you have provided: