On Sat, Oct 17, 2015 at 2:25 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:

Thanks Desiree - copying to list for the record and to share your thoughts.

J

On 17 October 2015 at 12:19, Desiree Miloshevic <dmiloshevic@afilias.info> wrote:

Jordan 

Myself, like Malcolm has said, have come out of our Enforcement model breakout session thinking that in the end there is not a huge advantage of the Sole Membership model

over the Single Designator Model.

However, we should explore other opportunities. For example we have not discussed enough the indirect Enforcement - the spill of the board

as that may end up being a faster and more efficient way than court proceedings, that would, in the end, keep deciding if something is

a fiduciary duty or not regardless of potentially reserved membership statutory powers and regardless of what the board suggests.

So: Just for the record, I like to add my +1 to what Desiree has said above. As one of those who participated in the enforcement subgroup its one of my take away from that discussion. Its also the reason i asked why we decided to restrict ourselves to discussing SD and SM only. The Co-Chairs said they were going to respond to that later, I hope the response can be shared as soon as they can.

Regards

 

Desiree

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On 17 Oct 2015, at 12:00, Jordan Carter <jordan@internetnz.net.nz> wrote:

Here are my notes as outlined at the meeting, for the record:

1. We focused on IRP, because PTI would end up in an IRP.

 

2. IRP enforcement process is the same regardless of the model. If after arbitration award is granted, losing party objects, prevailing party must go to court for enforcement of arbitration award

 

3. In both models there is a legal person - the sole designator or member - that can be party to IRP if required.

 

4. In either model, fiduciary duties are important and have the effect of limiting the scope of what can be arbitrated in an IRP setting.

 

5.  In the member model the board is limited in asserting that its action was protected as a fiduciary business judgment as to community powers reserved to the sole member. (That is, the scope of issues properly subject to arbitration is therefore broader in member model.)

 

6. Preferences were split among those present between the two models.

 

7. My personal preference on this dimension angles slightly towards the member model, because it provides for stronger enforceability of the community powers through the IRP or generally - that is, as said, it does that by removing the possibility of ICANN arguing that enforcement of those powers conflicts with fiduciary duties and so cannot be arbitrated.

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Jordan Carter

Chief Executive 
InternetNZ

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Jordan Carter

Chief Executive 
InternetNZ

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email: jordan@internetnz.net.nz 
Skype: jordancarter

Web: www.internetnz.nz 

A better world through a better Internet 

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