FW: Continued Counsel Dialogue
Dear all, Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice. This memo is being forwarded to the CCWG-Accountability for transparency. This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel. —Grace Begin forwarded message:
From: Kate Wallace <kwallace@jonesday.com> Date: October 1, 2015 at 8:49:24 PM PDT To: "Gregory, Holly" <holly.gregory@sidley.com>, "Rosemary E. Fei" <rfei@adlercolvin.com> Cc: Lizanne Thomas <lthomas@jonesday.com>, <jlevee@jonesday.com>, "Kevin B Espinola" <kbespinola@jonesday.com>, John Jeffrey <john.jeffrey@icann.org>, <samantha.eisner@icann.org> Subject: Continued Counsel Dialogue
Dear Holly and Rosemary,
In an effort to continue our dialogue, please see the attached document responding to some of the issues raised in the slides you distributed on 29 September 2015.
Thanks, Kate
Kate Wallace Partner JONES DAY® - One Firm Worldwide℠ <http://www.jonesday.com/> 555 S. Flower Street, 50th Floor Los Angeles, California 90071 Office +1.213.243.2536 kwallace@jonesday.com
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Grace, Thank you, All, "High Level Response" means "opinion" but not in the sense of "Legal Opinion". I really LOVE this one: [...] "the Board is required to remedy that violation, within the Board’s discretion." [...] (last line on Page 1) And I know I have quoted without the complete context. Who would pay for the court costs to enforce arbitration? Have we we seen our Counsel's reply? In particular to the last paragraph? If it is the Deluge, can someone point me to the Subject line, sender and date/time so I can look for it. greetings, el On 2015-10-02 06:38, Grace Abuhamad wrote:
Dear all,
Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice.
This memo is being forwarded to the CCWG-Accountability for transparency.
This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel.
—Grace [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Hi, That was one of my favorite lines as well. And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion." avri On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
I really LOVE this one:
[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]
(last line on Page 1)
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No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD. After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so. Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong? Cheers, Chris
On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org> wrote:
Hi,
That was one of my favorite lines as well.
And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."
avri
On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
I really LOVE this one:
[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]
(last line on Page 1)
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
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Hi, Within ICANN, it rests with the Board. I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication. avri On 02-Oct-15 06:57, Chris Disspain wrote:
No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.
After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.
Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?
Cheers,
Chris
On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
That was one of my favorite lines as well.
And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."
avri
On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
I really LOVE this one:
[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]
(last line on Page 1)
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
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I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing? Cheers, Chris
On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org> wrote:
Hi,
Within ICANN, it rests with the Board.
I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.
avri
On 02-Oct-15 06:57, Chris Disspain wrote:
No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.
After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.
Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?
Cheers,
Chris
On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
That was one of my favorite lines as well.
And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."
avri
On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
I really LOVE this one:
[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]
(last line on Page 1)
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
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Hi, Ultimately yes, they can all end up in court. The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures. avri On 02-Oct-15 18:21, Chris Disspain wrote:
I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?
Cheers,
Chris
On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Within ICANN, it rests with the Board.
I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.
avri
On 02-Oct-15 06:57, Chris Disspain wrote:
No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.
After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.
Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?
Cheers,
Chris
On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org>> wrote:
Hi,
That was one of my favorite lines as well.
And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."
avri
On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
I really LOVE this one:
[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]
(last line on Page 1)
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Hi Avri, I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement. That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org> wrote:
Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote:
I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?
Cheers,
Chris
On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Within ICANN, it rests with the Board.
I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.
avri
On 02-Oct-15 06:57, Chris Disspain wrote:
No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.
After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.
Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?
Cheers,
Chris
On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org>> wrote:
Hi,
That was one of my favorite lines as well.
And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."
avri
On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
I really LOVE this one:
[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]
(last line on Page 1)
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Seun, You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents. If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment) The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo. Greg On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Avri,
I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.
That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org> wrote:
Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote:
I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?
Cheers,
Chris
On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Within ICANN, it rests with the Board.
I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.
avri
On 02-Oct-15 06:57, Chris Disspain wrote:
No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.
After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.
Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?
Cheers,
Chris
On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org>> wrote:
Hi,
That was one of my favorite lines as well.
And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."
avri
On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: > I really LOVE this one: > > [...] > "the Board is required to remedy that violation, within the > Board’s discretion." > [...] > > (last line on Page 1)
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Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice". Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what? My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so. Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end. Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way. I rest my case! Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.
If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)
The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.
Greg
On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Avri,
I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.
That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org> wrote:
Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote:
I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?
Cheers,
Chris
On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Within ICANN, it rests with the Board.
I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.
avri
On 02-Oct-15 06:57, Chris Disspain wrote:
No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.
After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.
Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?
Cheers,
Chris
> On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org > <mailto:avri@acm.org> > <mailto:avri@acm.org>> wrote: > > Hi, > > That was one of my favorite lines as well. > > And is a key point. In the current model, and as far as I can tell in > the MEM, at the end of the day, all always rests "within the Board's > discretion." > > avri > > > On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >> I really LOVE this one: >> >> [...] >> "the Board is required to remedy that violation, within the >> Board’s discretion." >> [...] >> >> (last line on Page 1) > > > --- > This email has been checked for viruses by Avast antivirus software. > https://www.avast.com/antivirus > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Case dismissed. On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".
Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?
My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.
Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.
Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.
I rest my case!
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.
If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)
The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.
Greg
On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Avri,
I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.
That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org> wrote:
Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote:
I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?
Cheers,
Chris
On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Within ICANN, it rests with the Board.
I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.
avri
On 02-Oct-15 06:57, Chris Disspain wrote: > No Avri. At the end of the day it rests with the court as I believe is > clear from the note from JD. > > After a finding by an arbitration panel that a bylaw has been > breached, it is a matter for the Board about how they remedy (as I > believe is the case with the member model also) and that remedy is > itself subject to a claim that it breaches a bylaw (if the community > has consensus). If the Board refuses to abide by the ruling then a > court can order them to do so. > > Have I misunderstood the way the member model works. I believe Becky > has said numerous times that the only finding could be that the > relevant bylaw has been breached, NOT that the Board must take a > specific action. Is that wrong? > > > > Cheers, > > > Chris > > >> On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org >> <mailto:avri@acm.org> >> <mailto:avri@acm.org>> wrote: >> >> Hi, >> >> That was one of my favorite lines as well. >> >> And is a key point. In the current model, and as far as I can tell in >> the MEM, at the end of the day, all always rests "within the Board's >> discretion." >> >> avri >> >> >> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >>> I really LOVE this one: >>> >>> [...] >>> "the Board is required to remedy that violation, within the >>> Board’s discretion." >>> [...] >>> >>> (last line on Page 1) >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Greg, Would you please clarify what you mean by your remark below, in response to Seun's post? I don't understand it. George
On Oct 2, 2015, at 7:55 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Case dismissed.
On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote: Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".
Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?
My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.
Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.
Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.
I rest my case!
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Seun,
You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.
If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)
The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.
Greg
On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote: Hi Avri,
I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.
That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> wrote: Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote:
I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?
Cheers,
Chris
On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:
Hi,
Within ICANN, it rests with the Board.
I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.
avri
On 02-Oct-15 06:57, Chris Disspain wrote:
No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.
After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.
Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?
Cheers,
Chris
On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:
Hi,
That was one of my favorite lines as well.
And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."
avri
On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
I really LOVE this one:
[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]
(last line on Page 1)
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I remain confused. Have we accepted the MEM, because it originated from the Board in a few hours discussion, as being a better alternative than the 9 months of debate originating SMM? (Nothwithstanding that I personally don't like a *SINGLE* member membership model). The point I'm (repeatedly) making is one of process, not merits of the competing models. 'RULING THE ROOT' ----------------- Over the last 48 hours I've been reading Milton Mueller's excellent history: 'Ruling the Root'. (Hi Milton!). Despite the fact I've seen by personal observation of how Milton can, in person, be at least as "ornery", as Dr Lisse, which might otherwise cloud my judgment, I cannot recommend this book more highly. It sets out, in exquisite and fully referenced detail, the previous occasions (yes, plural) that "an aggressive timescale" led to unexpected outcomes. I will be blunt. If you haven't read this book (or done so a long time) then you are failing in your duty towards achieving the goal of the WG and it should be your next task. I'm actually really sorry I didn't read this months and years ago; just because I lived a large part of it did not prepare me for the fact that this book (a) synthesises the dynamics that went on in the creation of ICANN and documents it to 'before the dawn of (internet) time'. (b) provides a cautionary tale. It seems to me that the CCWG is hell bent on repeating the mistakes of our predecessors rather more closely than I'd already said. It needs to be required reading for every single ICANN Board Member, GAC rep and member of this CCWG. And it's available on Kindle. Nigel Roberts
On Oct 2, 2015, at 7:55 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Case dismissed.
On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".
Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?
My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.
Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.
Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.
I rest my case!
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Seun,
You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.
If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)
The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.
Greg
On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Hi Avri,
I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.
That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote: > I don’t disagree with you Avri but isn’t going to court the ultimate > enforceability in any of the models/ideas we have been discussing? > > > > Cheers, > > > Chris > > >> On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org> >> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: >> >> Hi, >> >> Within ICANN, it rests with the Board. >> >> I resist the idea of including going to court as a normal part of our >> process. I have argued all the way through this process, that going to >> court is something to be avoided and something we should not consider to >> be part of the process. Yes at the end of the day it needs to be >> possible, but it is a failure indication. >> >> avri >> >> >> On 02-Oct-15 06:57, Chris Disspain wrote: >>> No Avri. At the end of the day it rests with the court as I believe is >>> clear from the note from JD. >>> >>> After a finding by an arbitration panel that a bylaw has been >>> breached, it is a matter for the Board about how they remedy (as I >>> believe is the case with the member model also) and that remedy is >>> itself subject to a claim that it breaches a bylaw (if the community >>> has consensus). If the Board refuses to abide by the ruling then a >>> court can order them to do so. >>> >>> Have I misunderstood the way the member model works. I believe Becky >>> has said numerous times that the only finding could be that the >>> relevant bylaw has been breached, NOT that the Board must take a >>> specific action. Is that wrong? >>> >>> >>> >>> Cheers, >>> >>> >>> Chris >>> >>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> >>>> <mailto:avri@acm.org <mailto:avri@acm.org>> >>>> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: >>>> >>>> Hi, >>>> >>>> That was one of my favorite lines as well. >>>> >>>> And is a key point. In the current model, and as far as I can tell in >>>> the MEM, at the end of the day, all always rests "within the Board's >>>> discretion." >>>> >>>> avri >>>> >>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >>>>> I really LOVE this one: >>>>> >>>>> [...] >>>>> "the Board is required to remedy that violation, within the >>>>> Board’s discretion." >>>>> [...] >>>>> >>>>> (last line on Page 1) >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> https://www.avast.com/antivirus >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> >>> >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>> <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> >>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >
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I can't speak for anyone else Niger but I have not accepted the MEM and oppose it completely -- Paul Sent from myMail app for Android Saturday, 03 October 2015, 11:41AM -04:00 from Nigel Roberts < nigel@channelisles.net> :
I remain confused. Have we accepted the MEM, because it originated from the Board in a few hours discussion, as being a better alternative than the 9 months of debate originating SMM? (Nothwithstanding that I personally don't like a *SINGLE* member membership model).
The point I'm (repeatedly) making is one of process, not merits of the competing models.
'RULING THE ROOT' -----------------
Over the last 48 hours I've been reading Milton Mueller's excellent history: 'Ruling the Root'. (Hi Milton!). Despite the fact I've seen by personal observation of how Milton can, in person, be at least as "ornery", as Dr Lisse, which might otherwise cloud my judgment, I cannot recommend this book more highly.
It sets out, in exquisite and fully referenced detail, the previous occasions (yes, plural) that "an aggressive timescale" led to unexpected outcomes.
I will be blunt. If you haven't read this book (or done so a long time) then you are failing in your duty towards achieving the goal of the WG and it should be your next task.
I'm actually really sorry I didn't read this months and years ago; just because I lived a large part of it did not prepare me for the fact that this book
(a) synthesises the dynamics that went on in the creation of ICANN and documents it to 'before the dawn of (internet) time'.
(b) provides a cautionary tale.
It seems to me that the CCWG is hell bent on repeating the mistakes of our predecessors rather more closely than I'd already said.
It needs to be required reading for every single ICANN Board Member, GAC rep and member of this CCWG.
And it's available on Kindle.
Nigel Roberts
On Oct 2, 2015, at 7:55 PM, Greg Shatan < gregshatanipc@gmail.com <mailto: gregshatanipc@gmail.com >> wrote:
Case dismissed.
On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji < seun.ojedeji@gmail.com <mailto: seun.ojedeji@gmail.com >> wrote:
Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".
Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?
My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.
Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.
Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.
I rest my case!
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 3 Oct 2015 00:27, "Greg Shatan" < gregshatanipc@gmail.com <mailto: gregshatanipc@gmail.com >> wrote:
Seun,
You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.
If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)
The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.
Greg
On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji < seun.ojedeji@gmail.com <mailto: seun.ojedeji@gmail.com >> wrote:
Hi Avri,
I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.
That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 23:50, "Avri Doria" < avri@acm.org <mailto: avri@acm.org >> wrote:
Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote: > I don’t disagree with you Avri but isn’t going to court the ultimate > enforceability in any of the models/ideas we have been discussing? > > > > Cheers, > > > Chris > > >> On 2 Oct 2015, at 21:07 , Avri Doria < avri@acm.org <mailto: avri@acm.org > >> <mailto: avri@acm.org <mailto: avri@acm.org >>> wrote: >> >> Hi, >> >> Within ICANN, it rests with the Board. >> >> I resist the idea of including going to court as a normal part of our >> process. I have argued all the way through this process, that going to >> court is something to be avoided and something we should not consider to >> be part of the process. Yes at the end of the day it needs to be >> possible, but it is a failure indication. >> >> avri >> >> >> On 02-Oct-15 06:57, Chris Disspain wrote: >>> No Avri. At the end of the day it rests with the court as I believe is >>> clear from the note from JD. >>> >>> After a finding by an arbitration panel that a bylaw has been >>> breached, it is a matter for the Board about how they remedy (as I >>> believe is the case with the member model also) and that remedy is >>> itself subject to a claim that it breaches a bylaw (if the community >>> has consensus). If the Board refuses to abide by the ruling then a >>> court can order them to do so. >>> >>> Have I misunderstood the way the member model works. I believe Becky >>> has said numerous times that the only finding could be that the >>> relevant bylaw has been breached, NOT that the Board must take a >>> specific action. Is that wrong? >>> >>> >>> >>> Cheers, >>> >>> >>> Chris >>> >>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria < avri@acm.org <mailto: avri@acm.org > >>>> <mailto: avri@acm.org <mailto: avri@acm.org >> >>>> <mailto: avri@acm.org <mailto: avri@acm.org >>> wrote: >>>> >>>> Hi, >>>> >>>> That was one of my favorite lines as well. >>>> >>>> And is a key point. In the current model, and as far as I can tell in >>>> the MEM, at the end of the day, all always rests "within the Board's >>>> discretion." >>>> >>>> avri >>>> >>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >>>>> I really LOVE this one: >>>>> >>>>> [...] >>>>> "the Board is required to remedy that violation, within the >>>>> Board’s discretion." >>>>> [...] >>>>> >>>>> (last line on Page 1) >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> https://www.avast.com/antivirus >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community@icann.org <mailto: Accountability-Cross-Community@icann.org > >>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> >>> >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community@icann.org <mailto: Accountability-Cross-Community@icann.org > >>> <mailto: Accountability-Cross-Community@icann.org <mailto: Accountability-Cross-Community@icann.org >> >>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto: Accountability-Cross-Community@icann.org > >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >
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Hi, I do not think we all have accepted the inevitability of MEM. But I think those who see great urgency in the transition, knowing that this is possibly the the only thing the Board will agree to*, seem inclined to accept what they can get. And while it is not the position I take, I can see the logic in that. If you believe that transition is the most important goal, then nothing can be allowed to stand in its way: we should do what the other OCs did, accept that the status quo of the ICANN relationship is good and move on with a few tweaks. For all its problems MEM is an improvement. Until MEM it was declared legally impossible for the Board to ever have binding mediation or arbitration with the community or any part thereof, except for contracted parties within the context of their contract. Last year, before the transition process was initiated, MEM would have been greeted with cries of Hosanna. I have a paper copy of Milton's book and even read it when i first got involved with ICANN in 2005 and believed it a good introduction to many of the issues. I also recommend people read it. But history does not repeat itself, as juxtaposition of 2 quotes indicates: it may rhyme, but things are never the same, "one can not step in the same river twice." This situation is different, though it may rhyme. One essential difference is that the origins of ICANN included the NTIA backstop until such time as that oversight withered away. Any solution we may come up with will not have that element. avri * (Unless of course you assume a party in a negotiation never puts their bottom line as their initial negotiating position) On 03-Oct-15 11:41, Nigel Roberts wrote:
I remain confused. Have we accepted the MEM, because it originated from the Board in a few hours discussion, as being a better alternative than the 9 months of debate originating SMM? (Nothwithstanding that I personally don't like a *SINGLE* member membership model).
The point I'm (repeatedly) making is one of process, not merits of the competing models.
'RULING THE ROOT' -----------------
Over the last 48 hours I've been reading Milton Mueller's excellent history: 'Ruling the Root'. (Hi Milton!). Despite the fact I've seen by personal observation of how Milton can, in person, be at least as "ornery", as Dr Lisse, which might otherwise cloud my judgment, I cannot recommend this book more highly.
It sets out, in exquisite and fully referenced detail, the previous occasions (yes, plural) that "an aggressive timescale" led to unexpected outcomes.
I will be blunt. If you haven't read this book (or done so a long time) then you are failing in your duty towards achieving the goal of the WG and it should be your next task.
I'm actually really sorry I didn't read this months and years ago; just because I lived a large part of it did not prepare me for the fact that this book
(a) synthesises the dynamics that went on in the creation of ICANN and documents it to 'before the dawn of (internet) time'.
(b) provides a cautionary tale.
It seems to me that the CCWG is hell bent on repeating the mistakes of our predecessors rather more closely than I'd already said.
It needs to be required reading for every single ICANN Board Member, GAC rep and member of this CCWG.
And it's available on Kindle.
Nigel Roberts
On Oct 2, 2015, at 7:55 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Case dismissed.
On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".
Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?
My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.
Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.
Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.
I rest my case!
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Seun,
You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.
If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)
The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.
Greg
On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Hi Avri,
I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.
That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote: > I don’t disagree with you Avri but isn’t going to court the ultimate > enforceability in any of the models/ideas we have been discussing? > > > > Cheers, > > > Chris > > >> On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org> >> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: >> >> Hi, >> >> Within ICANN, it rests with the Board. >> >> I resist the idea of including going to court as a normal part of our >> process. I have argued all the way through this process, that going to >> court is something to be avoided and something we should not consider to >> be part of the process. Yes at the end of the day it needs to be >> possible, but it is a failure indication. >> >> avri >> >> >> On 02-Oct-15 06:57, Chris Disspain wrote: >>> No Avri. At the end of the day it rests with the court as I believe is >>> clear from the note from JD. >>> >>> After a finding by an arbitration panel that a bylaw has been >>> breached, it is a matter for the Board about how they remedy (as I >>> believe is the case with the member model also) and that remedy is >>> itself subject to a claim that it breaches a bylaw (if the community >>> has consensus). If the Board refuses to abide by the ruling then a >>> court can order them to do so. >>> >>> Have I misunderstood the way the member model works. I believe Becky >>> has said numerous times that the only finding could be that the >>> relevant bylaw has been breached, NOT that the Board must take a >>> specific action. Is that wrong? >>> >>> >>> >>> Cheers, >>> >>> >>> Chris >>> >>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> >>>> <mailto:avri@acm.org <mailto:avri@acm.org>> >>>> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: >>>> >>>> Hi, >>>> >>>> That was one of my favorite lines as well. >>>> >>>> And is a key point. In the current model, and as far as I can tell in >>>> the MEM, at the end of the day, all always rests "within the Board's >>>> discretion." >>>> >>>> avri >>>> >>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >>>>> I really LOVE this one: >>>>> >>>>> [...] >>>>> "the Board is required to remedy that violation, within the >>>>> Board’s discretion." >>>>> [...] >>>>> >>>>> (last line on Page 1) >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> https://www.avast.com/antivirus >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>>>
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Dear All, This message is address to all of us from A to Z We are all in one way or other .making our utmost efforts in a hardworking and tireless manner and beyond the call for duty to contribute at these critical period to address the mons complex issue of ICANN enhanced accountability. We all know that the ICANN Board severely resists to AGREE to the SMM and promoting its own MEM. As I mentioned in LA, we need to be open-minded and examine all proposals on their merits. There is no proposal which is perfect. There are some which are more responsive to the enhanced accountability and also others which less solid and responsive. We need to look at all proposals and find out whether there rooms/ ways and means to take either one ,if consensus is emerged on that opted model or try to find out whether there is some way out to reach a compromise but o not on the expense of quality or objectives . I am not comfortable to read message with strong tone vis a vis our colleagues. If we have a valid point we should try to sell it with logic, ethic, kindness and mutual respect. May I kindly request all of us to be so kind with each other so as not to be emotional or exceed the limit of a mutually acceptable conversation. It is up to you to agree or disagree. But we could be more productive if we lower the tone and speak with each other nicely, kindly, and respectfully. Kavouss 2015-10-03 18:21 GMT+02:00 Avri Doria <avri@acm.org>:
Hi,
I do not think we all have accepted the inevitability of MEM. But I think those who see great urgency in the transition, knowing that this is possibly the the only thing the Board will agree to*, seem inclined to accept what they can get.
And while it is not the position I take, I can see the logic in that. If you believe that transition is the most important goal, then nothing can be allowed to stand in its way: we should do what the other OCs did, accept that the status quo of the ICANN relationship is good and move on with a few tweaks. For all its problems MEM is an improvement. Until MEM it was declared legally impossible for the Board to ever have binding mediation or arbitration with the community or any part thereof, except for contracted parties within the context of their contract. Last year, before the transition process was initiated, MEM would have been greeted with cries of Hosanna.
I have a paper copy of Milton's book and even read it when i first got involved with ICANN in 2005 and believed it a good introduction to many of the issues. I also recommend people read it. But history does not repeat itself, as juxtaposition of 2 quotes indicates: it may rhyme, but things are never the same, "one can not step in the same river twice." This situation is different, though it may rhyme. One essential difference is that the origins of ICANN included the NTIA backstop until such time as that oversight withered away. Any solution we may come up with will not have that element.
avri
* (Unless of course you assume a party in a negotiation never puts their bottom line as their initial negotiating position)
On 03-Oct-15 11:41, Nigel Roberts wrote:
I remain confused. Have we accepted the MEM, because it originated from the Board in a few hours discussion, as being a better alternative than the 9 months of debate originating SMM? (Nothwithstanding that I personally don't like a *SINGLE* member membership model).
The point I'm (repeatedly) making is one of process, not merits of the competing models.
'RULING THE ROOT' -----------------
Over the last 48 hours I've been reading Milton Mueller's excellent history: 'Ruling the Root'. (Hi Milton!). Despite the fact I've seen by personal observation of how Milton can, in person, be at least as "ornery", as Dr Lisse, which might otherwise cloud my judgment, I cannot recommend this book more highly.
It sets out, in exquisite and fully referenced detail, the previous occasions (yes, plural) that "an aggressive timescale" led to unexpected outcomes.
I will be blunt. If you haven't read this book (or done so a long time) then you are failing in your duty towards achieving the goal of the WG and it should be your next task.
I'm actually really sorry I didn't read this months and years ago; just because I lived a large part of it did not prepare me for the fact that this book
(a) synthesises the dynamics that went on in the creation of ICANN and documents it to 'before the dawn of (internet) time'.
(b) provides a cautionary tale.
It seems to me that the CCWG is hell bent on repeating the mistakes of our predecessors rather more closely than I'd already said.
It needs to be required reading for every single ICANN Board Member, GAC rep and member of this CCWG.
And it's available on Kindle.
Nigel Roberts
On Oct 2, 2015, at 7:55 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Case dismissed.
On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".
Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?
My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.
Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.
Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.
I rest my case!
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Seun,
You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.
If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)
The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.
Greg
On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Hi Avri,
I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.
That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.
Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
Ultimately yes, they can all end up in court.
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
avri
On 02-Oct-15 18:21, Chris Disspain wrote: > I don’t disagree with you Avri but isn’t going to court the ultimate > enforceability in any of the models/ideas we have been discussing? > > > > Cheers, > > > Chris > > >> On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org> >> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: >> >> Hi, >> >> Within ICANN, it rests with the Board. >> >> I resist the idea of including going to court as a normal part of our >> process. I have argued all the way through this process, that going to >> court is something to be avoided and something we should not consider to >> be part of the process. Yes at the end of the day it needs to be >> possible, but it is a failure indication. >> >> avri >> >> >> On 02-Oct-15 06:57, Chris Disspain wrote: >>> No Avri. At the end of the day it rests with the court as I believe is >>> clear from the note from JD. >>> >>> After a finding by an arbitration panel that a bylaw has been >>> breached, it is a matter for the Board about how they remedy (as I >>> believe is the case with the member model also) and that remedy is >>> itself subject to a claim that it breaches a bylaw (if the community >>> has consensus). If the Board refuses to abide by the ruling then a >>> court can order them to do so. >>> >>> Have I misunderstood the way the member model works. I believe Becky >>> has said numerous times that the only finding could be that the >>> relevant bylaw has been breached, NOT that the Board must take a >>> specific action. Is that wrong? >>> >>> >>> >>> Cheers, >>> >>> >>> Chris >>> >>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> >>>> <mailto:avri@acm.org <mailto:avri@acm.org>> >>>> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: >>>> >>>> Hi, >>>> >>>> That was one of my favorite lines as well. >>>> >>>> And is a key point. In the current model, and as far as I can tell in >>>> the MEM, at the end of the day, all always rests "within the Board's >>>> discretion." >>>> >>>> avri >>>> >>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >>>>> I really LOVE this one: >>>>> >>>>> [...] >>>>> "the Board is required to remedy that violation, within the >>>>> Board’s discretion." >>>>> [...] >>>>> >>>>> (last line on Page 1) >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> https://www.avast.com/antivirus >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>>>
https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> >>> >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>> <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> >>>
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Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. <
Can we please stop using expansive terms like "certain things" and instead start citing specific examples of what the community (via whatever model) might try to implement? We need to take this discussion from the amorphously general to specific concerns if we are going to rationally stress test the theories. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad
On Oct 2, 2015, at 7:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request.
Hello Avri,
The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.
I agree. We should be focussing on developing our bylaws as our operating rules, to incorporate the community powers sought by the CCWG. We then have a simple independent arbitration mechanism for dealing with cases where there is a disagreement over the interpretation of the bylaws. Finally we have a mechanism for taking legal action against the Board if it does not abide by the arbitration decision (this should have a probability of less than 0.1% of ever happening). It seems we are focussed far too much time on debating the 0.1% situation, and not focussing enough on a set of bylaws that leverages the community structures that have already in most cases have been operating for more than 15 years. For the avoidance of doubt I and the Board have been willing all along to update the bylaws to reflect the new accountability mechanisms requested by the community. The bit that has seemed incredibly strange to me is the assumption that the Board will not abide by its bylaws. You should never elect people to the Board that won't abide by the bylaws, and you should remove people that don't abide by the bylaws - it is that simple to me. I get that there are situations where the Board and community may disagree on whether the Board is following the bylaws - but we have an enhanced IRP process proposed by the CCWG to deal with that. Regards, Bruce Tonkin
I appreciate the spirit of transparency in which this memo was shared. However, upon initial reading, and now re-reading, it is not at all the type of legal memo I expected, one citing statute and case law for its positions. It is really more of a lobbying document, and if I received a document like this in a different context (e.g., in regard to an issue being considered by Congress) my presumption would be that the client had told its counsel that it was unwilling to negotiate on a matter and that they were therefore instructed to prepare the strongest possible memo justifying that intransigent position. In regard to its substance, a few select comments: · “CCWG Counsel has not identified exemplars where organizations comparable to ICANN (e.g., with many stakeholders) have instituted and successfully operated under the proposed SMM” – there are no organizations comparable to ICANN, much less ones operating via the MSM. It’s a unique entity. · “CCWG Counsel has given little consideration to the need to test such a transformation of ICANN’s governance structure against the potential adverse effects it may have, including risks of capture, and whether this can be accomplished in the limited time available to meet a September 2016 transition”—I’m not sure that is true, given the extensive stress testing that has been performed. But once the CCWG figures out what it will propose post-LA, that will likewise need stress testing and lots of other adjustments to the current proposal. Making the September 2016 deadline was going to be a challenge even if a plan was approved by the Chartering Organizations in Dublin, and now that it’s clear that is completely off the table a more realistic deadline might be September 2017 (aside: when I see the proposals to add more time to an already crushing CCWG schedule in Dublin I worry about group burnout and poor decisions being made in haste and exhaustion). · “proponents of the CCWG’s Proposal minimize or ignore the fact that the shift to the SMM would place a significant amount of power in the hands of individuals and stakeholders that hold no fiduciary obligations to ICANN or the global stakeholder community. These individuals and stakeholders are free to act in their personal interest and are not required to make decisions based on what is best for ICANN, the ICANN community, and the global public interest. The result would be that a limited number of SOs and ACs (which could change over time) would have ultimate power over ICANN for significant matters with literally no accountability, producing exactly the opposite result that the community now seeks, i.e., “power without accountability.” Any shift of authority to the SOs and ACs should be accompanied by a commensurate level of accountability” – I have no objection to the exploration of accountability mechanisms for the single member. But the allegation that its constituent parts would act in their own personal interests seems vastly overblown, as it presumes a common interest when in fact they have widely divergent interests and perspectives. That fractionalization of the single member is a form of accountability, as is the fact that its relationship with the Board would be largely reactive. · “If the Board is found to have violated a Fundamental Bylaw, the Board is required to remedy that violation, within the Board’s discretion. If the Board fails to remedy a violation, the claimant may enforce the arbitration decision in the California courts.” – this just emphasizes that the MEM is of much narrower scope than the SMM in omitting Articles of Incorporation and ordinary Bylaws from the scope of arbitral matters. As for the remedy being tempered by the Board’s discretion, that’s a loophole you could drive a fleet of trucks through. · “The binding arbitration decision can be enforced by a California court even if the Board asserts that compliance with an arbitration decision would force the Board to violate its fiduciary duties. If the Board raised such a “defense,” the court would evaluate that claim and, within its discretion, would accept or reject it. If the “fiduciary duty defense” was rejected (which, practically speaking, is likely), a court order would issue compelling ICANN to comply with the arbitration decision.” – I don’t buy the argument that the fiduciary duty defense would be likely to fail if it had merit. If it lacked sufficient merit it should fail. · “Regardless of the thresholds required for the Sole Member to exercise a statutory power, such thresholds only constrain the ability of the Sole Member to exercise the statutory power; the actual power cannot be restricted, so there remains a risk that the power will be exercised.” – This seems to concede that procedural hurdles to exercising specific statutory powers could constrain their exercise. What specific statutory power provided by California law is the focus of counsel’s concern? · “Thus, statutory rights exist, no matter the voting threshold necessary to exercise those rights, and with no corresponding mechanism to ensure that the SOs and ACs that direct the Sole Member are accountable to ICANN or the global public interest, the existence of such rights constitutes a significant shift in ICANN’s governance.” – Well, isn’t a significant shift in ICANN’s governance the whole point of this accountability exercise? I haven’t commented on every aspect of the memo and will await what will surely be a fine and comprehensive response by the CCWG’s counsel. But, while it certainly raises some issues worthy of further consideration, its tone and substance do little to move the ball forward toward constructive compromise. Yes, it is certainly possible that ICANN’s SOs and ACs may change over time, but is it really likely that the majority will “act in their personal interest” and act in concert to make decisions that are in opposition to “what is best for ICANN, the ICANN community, and the global public interest”? That would require a cast of individuals widely divergent from those who presently engage with ICANN. And if that unlikely turn of events did occur, exactly what horrible deeds would they be able to commit? Can we please have some specific examples of what harms and outrages a renegade single member might actually engage in, as opposed to fear-mongering without examples? In other words, let’s stress test this memo. And let’s start requesting that specific examples rather than generalized threats be cited. But, more important, can we please have a more constructive and less adversarial approach? In the end, to get an acceptable deal, everyone will need to compromise. Or there won’t be any transition and the MSM will have suffered a major and perhaps fatal blow that could pave the way for multilateral control of the DNS. In that scenario there are no winners within ICANN corporate or community. Best to all Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Grace Abuhamad Sent: Friday, October 02, 2015 12:39 AM To: Accountability Cross Community Subject: [CCWG-ACCT] FW: Continued Counsel Dialogue Dear all, Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice. This memo is being forwarded to the CCWG-Accountability for transparency. This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel. —Grace Begin forwarded message: From: Kate Wallace <kwallace@jonesday.com<mailto:kwallace@jonesday.com>> Date: October 1, 2015 at 8:49:24 PM PDT To: "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>>, "Rosemary E. Fei" <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>> Cc: Lizanne Thomas <lthomas@jonesday.com<mailto:lthomas@jonesday.com>>, <jlevee@jonesday.com<mailto:jlevee@jonesday.com>>, "Kevin B Espinola" <kbespinola@jonesday.com<mailto:kbespinola@jonesday.com>>, John Jeffrey <john.jeffrey@icann.org<mailto:john.jeffrey@icann.org>>, <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>> Subject: Continued Counsel Dialogue Dear Holly and Rosemary, In an effort to continue our dialogue, please see the attached document responding to some of the issues raised in the slides you distributed on 29 September 2015. Thanks, Kate Kate Wallace Partner JONES DAY® - One Firm Worldwide℠<http://www.jonesday.com/> 555 S. Flower Street, 50th Floor Los Angeles, California 90071 Office +1.213.243.2536 kwallace@jonesday.com<mailto:kwallace@jonesday.com> ========== This e-mail (including any attachments) may contain information that is private, confidential, or protected by attorney-client or other privilege. If you received this e-mail in error, please delete it from your system without copying it and notify sender by reply e-mail, so that our records can be corrected. ========== ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4419/10680 - Release Date: 09/22/15 Internal Virus Database is out of date.
Philip, This is exactly why I would like to see, and have asked for, the notes/transcript from their meeting with our Counsel. el -- Sent from Dr Lisse's iPad mini
On 2 Oct 2015, at 20:37, Phil Corwin <psc@vlaw-dc.com> wrote:
I appreciate the spirit of transparency in which this memo was shared.
However, upon initial reading, and now re-reading, it is not at all the type of legal memo I expected, one citing statute and case law for its positions.
It is really more of a lobbying document, and if I received a document like this in a different context (e.g., in regard to an issue being considered by Congress) my presumption would be that the client had told its counsel that it was unwilling to negotiate on a matter and that they were therefore instructed to prepare the strongest possible memo justifying that intransigent position.
[...]
Note for transparency – the board (as measured b when I received the mail from the board list) received the memo 17 minutes before it was shared with the CCWG. Regards, Bruce TOnin From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Grace Abuhamad Sent: Friday, 2 October 2015 2:39 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] FW: Continued Counsel Dialogue Dear all, Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice. This memo is being forwarded to the CCWG-Accountability for transparency. This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel. —Grace
I am no lawyer, so I would like to know, Hoping that I am not going over old ground...so excuse my confusion. "SMM would place a significant amount of power in the hands of individuals and stakeholders that hold no fiduciary obligations to ICANN" Who does the NTIA hold fiduciary duty to? ICANN? Or to Congress? .... "or the global stakeholder community." Who is the SMM to hold fiduciary duty to principally? the global stakeholder community(?) "These individuals and stakeholders are free to act in their personal interest and are not required to make decisions based on what is best for ICANN," Surely the ICANN board is there to interpret what is best for ICANN in its decision making? Does the NTIA currently make decisions based on what is best for ICANN? ....."the ICANN community, and the global public interest." The ICANN community is ?? The SMM is , mandated to act in whos best interest? The NTIA acts in whose best interest? The NTIA does wield a significant amount of power...so much so that risk of capture is negotiable. So We would tend to want to mirror/duplicate the power of the NTIA as an SMM or other instrument. What other control line parameter do we have but the NTIA's power or perceived power? RD Dear all, Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice. This memo is being forwarded to the CCWG-Accountability for transparency. This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel. —Grace Begin forwarded message: *> From:* Kate Wallace <kwallace@jonesday.com> *> Date:* October 1, 2015 at 8:49:24 PM PDT *> To:* "Gregory, Holly" <holly.gregory@sidley.com>, "Rosemary E. Fei" < rfei@adlercolvin.com> *> Cc:* Lizanne Thomas <lthomas@jonesday.com>, <jlevee@jonesday.com>, "Kevin B Espinola" <kbespinola@jonesday.com>, John Jeffrey <john.jeffrey <john.jeffrey@icann.org>@icann.org <john.jeffrey@icann.org>>, < samantha.eisner@icann.org> *> Subject:** Continued Counsel Dialogue*
Dear Holly and Rosemary,
In an effort to continue our dialogue, please see the attached document responding to some of the issues raised in the slides you distributed on 29 September 2015.
Thanks, Kate
Kate Wallace Partner *> JONES <http://www.jonesday.com/>**DAY® <http://www.jonesday.com/>** - One Firm <http://www.jonesday.com/>**Worldwide <http://www.jonesday.com/>**℠ <http://www.jonesday.com/>* 555 S. Flower Street, 50th Floor Los Angeles, California 90071 Office +1.213.243.2536 kwallace@jonesday.com <kwallace@jonesday.com>
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Hello Rudolph,
Who does the NTIA hold fiduciary duty to? ICANN? Or to Congress?
I think ultimately to USA citizens as represented by their elected political leaders. Now the USA Government has been a strong supporter of the global benefits of the Internet – but its fiduciary duty is to its citizens. I think there is alignment in that having access to a single Internet globally probably is of benefit to USA citizens – both economically and socially. The challenge for the NTIA to get the transition through congress will be to show that it is of benefit to USA citizens for the NTIA to step back from its stewardship of IANA. I don’t think that will be an easy task. Regards, Bruce Tonkin
I doubt that NTIA has any fiduciary duty. NTIA's duties are almost certainly statutory. http://www.louisaheinrich.com/wp-content/uploads/2015/03/inigo-montoya_that-... Nigel
On 04/10/15 09:28, Bruce Tonkin wrote:
Hello Rudolph,
Who does the NTIA hold fiduciary duty to? ICANN? Or to Congress?
I think ultimately to USA citizens as represented by their elected political leaders.
Nigel Re: http://www.louisaheinrich.com/wp-content/uploads/2015/03/inigo-montoya_that-... I needed that :) On Oct 4, 2015 5:08 AM, "Nigel Roberts" <nigel@channelisles.net> wrote:
I doubt that NTIA has any fiduciary duty.
NTIA's duties are almost certainly statutory.
http://www.louisaheinrich.com/wp-content/uploads/2015/03/inigo-montoya_that-...
Nigel
On 04/10/15 09:28, Bruce Tonkin wrote:
Hello Rudolph,
Who does the NTIA hold fiduciary duty to? ICANN? Or to Congress?
I think ultimately to USA citizens as represented by their elected political leaders.
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Thanks Grace for sharing this. I would like suggest we certify to our lawyers an advocacy request --- that is, the same thing this Jones Day memo is. Could Sidley and Adler be tasked with a similar memo directed at the Board's MEM idea? [I am concerned that we have our lawyers answering specific questions, and the Board's lawyers rolling all over the lawn. I would like an even playing field. The memo from JD is an extraordinary document for lawyers to have prepared, but if this is the sort of process we are in, it requires us all to be on a common approach.] Jordan On 2 October 2015 at 17:38, Grace Abuhamad <grace.abuhamad@icann.org> wrote:
Dear all,
Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice.
This memo is being forwarded to the CCWG-Accountability for transparency.
This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel.
—Grace
Begin forwarded message:
*From:* Kate Wallace <kwallace@jonesday.com> *Date:* October 1, 2015 at 8:49:24 PM PDT *To:* "Gregory, Holly" <holly.gregory@sidley.com>, "Rosemary E. Fei" < rfei@adlercolvin.com> *Cc:* Lizanne Thomas <lthomas@jonesday.com>, <jlevee@jonesday.com>, "Kevin B Espinola" <kbespinola@jonesday.com>, John Jeffrey < john.jeffrey@icann.org>, <samantha.eisner@icann.org> *Subject:* *Continued Counsel Dialogue*
Dear Holly and Rosemary,
In an effort to continue our dialogue, please see the attached document responding to some of the issues raised in the slides you distributed on 29 September 2015.
Thanks, Kate
Kate Wallace Partner *JONES DAY® - One Firm Worldwide**℠* <http://www.jonesday.com/> 555 S. Flower Street, 50th Floor Los Angeles, California 90071 Office +1.213.243.2536 kwallace@jonesday.com
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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 *
s/lawyers/tanks/ On 04/10/15 21:11, Jordan Carter wrote:
Thanks Grace for sharing this.
I would like suggest we certify to our lawyers an advocacy request --- that is, the same thing this Jones Day memo is.
Could Sidley and Adler be tasked with a similar memo directed at the Board's MEM idea?
[I am concerned that we have our lawyers answering specific questions, and the Board's lawyers rolling all over the lawn. I would like an even playing field. The memo from JD is an extraordinary document for lawyers to have prepared, but if this is the sort of process we are in, it requires us all to be on a common approach.]
Jordan
On 2 October 2015 at 17:38, Grace Abuhamad <grace.abuhamad@icann.org <mailto:grace.abuhamad@icann.org>> wrote:
Dear all,
Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice.
This memo is being forwarded to the CCWG-Accountability for transparency.
This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel.
—Grace
Begin forwarded message:
*From:* Kate Wallace <kwallace@jonesday.com <mailto:kwallace@jonesday.com>> *Date:* October 1, 2015 at 8:49:24 PM PDT *To:* "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>, "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>> *Cc:* Lizanne Thomas <lthomas@jonesday.com <mailto:lthomas@jonesday.com>>, <jlevee@jonesday.com <mailto:jlevee@jonesday.com>>, "Kevin B Espinola" <kbespinola@jonesday.com <mailto:kbespinola@jonesday.com>>, John Jeffrey <john.jeffrey@icann.org <mailto:john.jeffrey@icann.org>>, <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>> *Subject:* *Continued Counsel Dialogue*
Dear Holly and Rosemary,
In an effort to continue our dialogue, please see the attached document responding to some of the issues raised in the slides you distributed on 29 September 2015.
Thanks, Kate
Kate Wallace Partner *_JONES DAY® - One Firm Worldwide_**_℠_* <http://www.jonesday.com/> 555 S. Flower Street, 50th Floor Los Angeles, California 90071 Office +1.213.243.2536 <tel:%2B1.213.243.2536> kwallace@jonesday.com <mailto:kwallace@jonesday.com>
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-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz>
/A better world through a better Internet /
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Jordan, I respectfully disagree. "Rolling all over the lawn", as you put it, is an understatement. It is the Board's concern if it wants to be led by polemic peddling as legal counsel - the JD "high level" memo could well have been written by an undergraduate student of political science, riffing on governance and instability. JD is probably fulfilling its brief, and may be the Board would like to start asking substantial questions to it. No reason, in my opinion, why the CCWG should deviate from our constructive role. Arun -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272 On Mon, Oct 5, 2015 at 3:39 AM, Nigel Roberts <nigel@channelisles.net> wrote:
s/lawyers/tanks/
On 04/10/15 21:11, Jordan Carter wrote:
Thanks Grace for sharing this.
I would like suggest we certify to our lawyers an advocacy request --- that is, the same thing this Jones Day memo is.
Could Sidley and Adler be tasked with a similar memo directed at the Board's MEM idea?
[I am concerned that we have our lawyers answering specific questions, and the Board's lawyers rolling all over the lawn. I would like an even playing field. The memo from JD is an extraordinary document for lawyers to have prepared, but if this is the sort of process we are in, it requires us all to be on a common approach.]
Jordan
On 2 October 2015 at 17:38, Grace Abuhamad <grace.abuhamad@icann.org <mailto:grace.abuhamad@icann.org>> wrote:
Dear all,
Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice.
This memo is being forwarded to the CCWG-Accountability for transparency.
This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel.
—Grace
Begin forwarded message:
*From:* Kate Wallace <kwallace@jonesday.com
<mailto:kwallace@jonesday.com>> *Date:* October 1, 2015 at 8:49:24 PM PDT *To:* "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>, "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>> *Cc:* Lizanne Thomas <lthomas@jonesday.com <mailto:lthomas@jonesday.com>>, <jlevee@jonesday.com <mailto:jlevee@jonesday.com>>, "Kevin B Espinola" <kbespinola@jonesday.com <mailto:kbespinola@jonesday.com>>, John Jeffrey <john.jeffrey@icann.org <mailto:john.jeffrey@icann.org>>, <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>> *Subject:* *Continued Counsel Dialogue*
Dear Holly and Rosemary,
In an effort to continue our dialogue, please see the attached document responding to some of the issues raised in the slides you distributed on 29 September 2015.
Thanks, Kate
Kate Wallace Partner *_JONES DAY® - One Firm Worldwide_**_℠_* <http://www.jonesday.com/> 555 S. Flower Street, 50th Floor Los Angeles, California 90071 Office +1.213.243.2536 <tel:%2B1.213.243.2536> kwallace@jonesday.com <mailto:kwallace@jonesday.com>
========== This e-mail (including any attachments) may contain information that is private, confidential, or protected by attorney-client or other privilege. If you received this e-mail in error, please delete it from your system without copying it and notify sender by reply e-mail, so that our records can be corrected. ==========
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-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz>
/A better world through a better Internet /
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participants (15)
-
Arun Mohan Sukumar -
Avri Doria -
Bruce Tonkin -
Chris Disspain -
Dr Eberhard W Lisse -
George Sadowsky -
Grace Abuhamad -
Greg Shatan -
Jordan Carter -
Kavouss Arasteh -
Nigel Roberts -
Paul Rosenzweig -
Phil Corwin -
Rudolph Daniel -
Seun Ojedeji