Dear all, and especially dear legal colleagues,

The memo states:

"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "

I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?

Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?

Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.

Would one of these two work?

Best,

Roelof Meijer

From: <Hofheimer>, "Joshua T." <jhofheimer@sidley.com>
Date: donderdag 11 juni 2015 06:09
To: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org>
Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

Dear Legal Sub-Team,

Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.

Cheers,

Josh

JOSHUA HOFHEIMER

Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
jhofheimer@sidley.com
www.sidley.com

SIDLEY AUSTIN LLP

From:ccwg-accountability5-bounces@icann.org [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To: ccwg-accountability5@icann.org
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions

Dear Legal Sub-team,

Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.

Best,

TYLER HILTON
Associate

Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
thilton@sidley.com
www.sidley.com

SIDLEY AUSTIN LLP

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