Dear Colleagues,

Below is the response from our Counsel regarding Izumi's questions certified as #81.

The questions were :
-Under the MEM proposed by ICANN, who exactly and on which
basis has theright to commence proceedings in order to enforce the
binding arbitration?
-Should SO/ACs be unincorporated associations? Should SO/ACs
give power of attorney to their chairs or one of their member?

Best
Mathieu

-------- Message transféré --------
Sujet : Question from Izumi re Comparison of independent review processes
Date : Mon, 12 Oct 2015 20:38:59 +0000
De : Gregory, Holly <holly.gregory@sidley.com>
Pour : leonfelipe@sanchez.mx <leonfelipe@sanchez.mx>, mathieu.weill@afnic.fr <mathieu.weill@afnic.fr>, thomas@rickert.net <thomas@rickert.net>
Copie à : ICANN@adlercolvin.com <ICANN@adlercolvin.com>, Sidley ICANN CCWG <sidleyicannccwg@sidley.com>


Dear Mathieu, Leon and Thomas, 

 

With respect to Izumi’s inquiry, questions about how the MEM is intended to work are best addressed to the Board, ICANN Legal and Jones Day. 

 

Below are the memos (with links) where we attempted to compare the MEM to other models with respect to the enforcement of community powers based on our understanding of what has been proposed.  Please let us know if there is anything else we can provide. 

 

 

·         Comparison of CCWG 2nd Draft Proposal (Community Mechanism as Sole Member) and ICANN Board Proposal (Link)

o   Item 15 - “The MEM model complicates the standing analysis because community members seeking to arbitrate must join together as a MEM Issue Group. It will be important for the Board to clarify whether they intend the MEM Issue Group to be considered an unincorporated association, which would be required to establish associational standing.  If the MEM Issues Group does not come into existence until it is formed to file a complaint with the MEM, a question arises regarding how it can claim that it existed at the time of (and was materially affected by) the Board’s alleged violation. To file a MEM complaint, must all members of the Issues Group be materially affected or can the Group file a MEM complaint in collective support of a single SO or AC that is  materially affected? The CMSM avoids the difficulty of a temporary “coalition of the willing” by existing as an unincorporated Sole Member  entity prior to the filing of any claim with the IRP (or MEM).”

·         KEY CHARACTERISTICS COMPARISON: Community Mechanism As Sole Member Model & ICANN Board Proposal (Link)

o   Slide 5 - “SO/AC can petition to invoke MEM Arbitration; upon reaching a certain threshold of SO/AC support a MEM Issue Group would be formed which (depending upon implementation) could have standing under Bylaws and legal capacity to initiate and enforce arbitration. Scope of permissible MEM arbitration (Fundamental Bylaw violation v. “new community power  violation”) unclear. SO/ACs may bring actions in CA courts seeking enforcement of MEM award, although this may require legal personhood. No single SO/AC has standing to bring derivative suits against fiduciaries. The MEM Issue Group, as a separate unincorporated association, would be part of each MEM.”

·         Comparison of Current Independent Review Process (IRP), IRP in CCWG 2nd Draft Proposal under the Community Mechanism as Sole Member (CMSM) Model and ICANN Board Proposal re IRP and Multistakeholder Enforcement Mechanism (MEM) (Link)

o   Item 3 Who May Initiate; Harm Threshold - “MEM limited to Board action in violation of Fundamental Bylaws, and MEM petition must be initiated by an SO or AC . . .”

o   Item 7 – Capacity to Sue for Judicial Enforcement - “Three avenues are suggested:

§  an individual SO/AC or some collection of SOs/ACs could form an unincorporated association (UA);

§  the members of multiple SO/ACs could form one UA; or

§  the chairs of multiple SO/ACs could form a UA.”

 

HOLLY J. GREGORY
Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice

Sidley Austin LLP
+1 212 839 5853
holly.gregory@sidley.com

From: Mathieu Weill
Sent: Saturday, October 10, 2015 03:57:11 AM
To: Gregory, Holly
Cc: León Felipe Sánchez Ambía; Izumi Okutani; Samantha Eisner; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG
Subject: Re: [CCWG-ACCT] Comparison of independent review processes

Hi Holly,

 

I believe this is just a follow up isn't it ? My understanding was that Izumi's question was already addressed in the various memos ?

 

Mathieu Weill

---------------

Depuis mon mobile, désolé pour le style


Le 10 oct. 2015 à 01:19, Gregory, Holly <holly.gregory@sidley.com> a écrit :

We will add it to the certified list of questions.  



Sent with Good (www.good.com)

 

From: León Felipe Sánchez Ambía
Sent: Friday, October 09, 2015 05:53:46 PM
To: Izumi Okutani
Cc: Samantha Eisner; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG; Mathieu Weill
Subject: Re: [CCWG-ACCT] Comparison of independent review processes

Dear Holly, dear Rosemary,

I think this is a key question. Could you kindly provide an answer?

Saludos,


León

> El 09/10/2015, a las 5:02 p.m., Izumi Okutani <izumi@nic.ad.jp> escribió:
>
> Thanks Sam for this information.
>
> I also have a follow up question and would be interested to hear the CCWG lawyers' (Sidley Austin and Adler Colvin) view on this.
>
> Under the MEM proposed by ICANN, who exactly and on which basis has the
> right to commence proceedings in order to enforce the binding arbitration?
>
> Should SO/ACs be unincorporated associations? Should SO/ACs give power
> of attorney to their chairs or one of their member?
>
> I would appreciate some clarification on this matter.
>
>
> Thank you,
> Izumi
>
>> On 2015/10/09 4:28, León Felipe Sánchez Ambía wrote:
>> Thanks Sam. This is very useful information.
>>
>> It would be useful to know how this avoids going into the concerns raised by the Board on capture, complexity and uncertainty:
>>
>> Quote from Jones Day Memo
>>
>> "Specifically, under the Board’s Proposal, the decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity."
>>
>> It would be great if we could have more clarity on this I think.
>>
>>
>> Best regards,
>>
>>
>> León
>>
>>> El 08/10/2015, a las 1:47 p.m., Samantha Eisner <Samantha.Eisner@icann.org> escribió:
>>>
>>> I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.  
>>>
>>> Note from Jones Day:
>>>
>>> Dear CCWG,
>>>
>>> As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG.  In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration.  CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo.  Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.
>>>
>>> From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>
>>> Date: Wednesday, October 7, 2015 at 10:24 PM
>>> To: Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, León Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>>
>>> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>
>>> Subject: [CCWG-ACCT] Comparison of independent review processes
>>>
>>> Dear CCWG Co-chairs, Members and Participants,  Attached please find a comparison of key characteristics of  (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A. 
>>> We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal.
>>> Kind regards, Holly and Rosemary
>>>
>>>
>>>
>>> Sent with Good (www.good.com <http://www.good.com/>)
>>>
>>> From: Grapsas, Rebecca
>>> Sent: Wednesday, October 07, 2015 11:45:50 PM
>>> To: Gregory, Holly
>>> Subject:
>>>
>>>
>>>
>>>
>>> ****************************************************************************************************
>>> This e-mail is sent by a law firm and may contain information that is privileged or confidential.
>>> If you are not the intended recipient, please delete the e-mail and any attachments and notify us
>>> immediately.
>>>
>>> ****************************************************************************************************
>>> <Oct. 7, 2015 Memo re Enforceability of Binding Arbitration[1].pdf>
>>
>>
>>
>>
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