On 22/06/2015 17:52, Seun Ojedeji wrote:
- Enforceability solutions other than membership: Considering the complications relating to the various membership models that has been suggested, there is obvious need to consider what is achievable within the current structure and i think everything is achievable except enforceability.
I completely agree with David McAuley's reply on this point. Unfortunately, if you achieve "everything except enforceability", you achieve nothing more than a clarification of your request. You do not achieve accountability, only a clear statement of what you would like ICANN to do. The decision rests elsewhere.
So it seem to me that we will already have some enforceability without actually requiring membership since an organisation board is required to obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it needs to go through abc process, why would the board not follow/obey those direction as defined in the bylaw?
There are many reasons why things go wrong in this world. But I do not want to suggest anything you may find fanciful or improbable or, worse, that could be interpreted as attacking our honourable current Board members. So for now, let's just say that the Board might believe they were following the bylaws even if they were not. It is possible to err. Beyond that though, is the problem Becky identified earlier: it seems you are mistaken when you say that an organisation's board is required to obey/comply with its bylaws. We have been told that the Board of an organisation with no members has a fiduciary duty to the company that takes precedence over the Bylaws: if the Board decides that it is in the best interests of the corporation to defy the bylaws, then defying them is their legal duty. Only by creating a membership (whether through Empowered SOs, UAs, Open Membership, or some other approach) can we raise up the bylaws to something the Board must honour in the way you assume they already must. Incidentally, I don't blame you at all for not realising this: I didn't either, and was quite surprised to be told it. But the legal advice being what it is, we must act accordingly. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA