Roelof:

Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works.

If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity.

I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues.

Greg

On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:

Hi Ed,

Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.

Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.

Best,

Roelof

From: Edward Morris <egmorris1@toast.net>
Date: woensdag 22 april 2015 16:24
To: Matthew Shears <mshears@cdt.org>
Cc: Roelof Meijer <roelof.meijer@sidn.nl>, "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org>

Subject: Re: [CCWG-ACCT] member organization and single membership structure

I look forward to independent counsel's analysis of this proposal.

Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.

I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.

Ed

Sent from my iPad

On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org> wrote:

If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?

Matthew

On 4/22/2015 2:56 PM, Roelof Meijer wrote:

Hi Avri,

The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).

And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status

Best,

Roelof

From: Avri Doria <avri@acm.org>
Organization: Technicalities
Reply-To: "avri@acm.org" <avri@acm.org>
Date: woensdag 22 april 2015 15:09
To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] member organization and single membership structure

Hi,

On 22-Apr-15 08:26, Roelof Meijer wrote:

2)

What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.

In some way that might lessen the complexity of making most SOAC an individual legal entity.

How would it work? Would we continue to appoint Directors just as we do now?

Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?

thanks

avri

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