I appreciate the points on this thread made by all and also look forward to the lawyers’ views at the top of the hour. Pending their insights, I tend to come down in support of the arguments Jordan and Greg made in that this is, overall, an exercise in making ICANN accountable once NTIA goes away. The SOs/ACs need not have a requirement that their “members” owe their allegiance to the UA entity over the community from which they sprang, unlike ICANN which is in the very position (I think) that Chris alludes to. And it seems to me there is counter-weight accountability within the communities vis-à-vis ICANN, not least by means of steep threshold requirements to take action. It is an important and well-presented issue, and now we can get some advice and pursue it further. David McAuley From: ccwg-accountability5-bounces@icann.org [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam Sent: Friday, May 01, 2015 7:19 PM To: 'ccwg-accountability5@icann.org'; Chris Disspain Cc: CCWG Accountability Subject: Re: [Acct-Legal] [CCWG-ACCT] Fwd: Revised memo on Unincorporated Associations, with sample Articles of Association attached Agree generally with Greg. HOLLY J. GREGORY Partner Sidley Austin LLP +1.212.839.5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: ccwg-accountability5-bounces@icann.org<mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam Sent: Friday, May 01, 2015 7:11 PM To: Chris Disspain Cc: ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>; CCWG Accountability Subject: Re: [Acct-Legal] [CCWG-ACCT] Fwd: Revised memo on Unincorporated Associations, with sample Articles of Association attached Chris, The UA is composed of the members of the SO/AC or some subset thereof, and the bylaws of the UA would dictate that it should follow the direction of the SO/AC and that the members of the UA have no leeway to deviate from that direction. If the SO/AC has all the same members as the UA, then there is no possibility that the UA could act differently from the SO/AC. So we would need to look at a situation where the members of the UA are a subset of the members of the SO/AC. This breaks down, most likely, to two scenarios. In the first scenario, a small group of members of the SO/AC are selected by the SO/AC to act as the members of the UA. I would assume, like most elected leaders and representatives, that those chosen would be relatively well-regarded, trustworthy, longstanding, active contributors to that SO/AC (consider,e.g., GNSO councilors or SO/AC leadership as examples), and that they would indicate that they understood the nature of the role as part of the selection process. As an example, let's assume that the members of the GNSO's UA were the Chair of the GNSO and the Chairs of each SG. Your hypothesis is that these 5 worthies would somehow "go rogue" and hijack the GNSO's UA, violate the bylaws of the UA, and refuse to follow directions from the GNSO (which would undoubtedly be quite public). In the second scenario, a large number (but not all) of the members of the (e.g.) GNSO become members of the GNSO's UA. As in the first scenario, they would acknowledge and agree as a condition of membership the nature of their role and the role of the UA. Again, your hypothesis is that this mass of GNSO members would somehow break from the GNSO and the SGs that they are members of, and act in violation of the UAs bylaws and their agreement to act in a limited capacity. In response (either way), the GNSO would have removed these "rogues" as members of the UA and replaced them with a crew that would act in accordance with the bylaws and the direction of the GNSO. In all likelihood, they would be removed from the GNSO as well. So your hypothetical further assumes that, in spite of this gross violation of the UA's bylaws and a public declaration that the members were being removed and replaced and that the invalid actions were being reversed, the other UAs (and/or ICANN) would continue to recognize the invalid actions of the rogue deposed members and not the actions of the replacement members acting in accordance with the public instructions of the GNSO. I suppose there is a technical possibility that this could occur, but I fail to see it as a practical possibility. Furthermore, if this has happened, ICANN and the multistakeholder model must have become so incredibly broken that an attempt to hijack UA would not be our most significant concerns. That said, it's appropriate to clarify the answer to your question from a legal standpoint as well as a practical one and we'll look to Sidley and Adler & Colvin to help us with that. Greg On Fri, May 1, 2015 at 6:28 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Thanks. I'll assume it attempts to. Here's what is says: "The control mechanism for an SO/AC over its unincorporated association could be essentially the same as whatever control mechanisms currently exist to ensure that the SO/ACs do what their participants collectively decide they should do. For example, if an SO/AC has a chair, that chair could be empowered and directed by the participants in the SO/AC to cause the unincorporated association of that SO/AC to act as directed by the SO/AC to exercise membership or designator rights. If the chair refused, that chair could presumably be subjected to discipline or removed and replaced under existing procedures within the SO or AC, just as if the chair had refused to take any other action as directed by the SO/AC. If existing control mechanisms within SO/ACs are insufficient, the SO/AC could modify them to address the weakness." I refer to the text in bold. I agree. However this does not answer the question, "and what power of enforcement over the UA does the SO or AC have if the UA refuses to act as directed or if it starts to act on its own behalf without direction?". This is and has been the point I have been making for the last day or so. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111<tel:%2B61%203%208341%204111> | F: +61 3 8341 4112<tel:%2B61%203%208341%204112> E: ceo@auda.org.au<mailto:ceo@auda.org.au> | W: www.auda.org.au<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au&d=AwMFaQ...> auDA - Australia's Domain Name Administrator On 2 May 2015, at 08:20, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> wrote: Hi Chris! I'm sorry but can't tell because I'm on the road and haven't had the chance to go through the document but I forwarded it because I didn't want to hold it. Cheers! León Enviado desde el móvil. Errores tipográficos son culpa del tecladito y mis dedos gordos. El may 1, 2015, a las 3:17 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> escribió: Thanks León. Jus to check, are the changes meant to deal with the question I asked the other day and have been exchanging with Greg and Jordan about? Or is that being answered separately? Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111<tel:%2B61%203%208341%204111> | F: +61 3 8341 4112<tel:%2B61%203%208341%204112> E: ceo@auda.org.au<mailto:ceo@auda.org.au> | W: www.auda.org.au<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au&d=AwMFaQ...> auDA - Australia's Domain Name Administrator On 2 May 2015, at 08:10, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> wrote: Hi all, An update from the lawyers with regards to UAs Best regards, León Enviado desde el móvil. Errores tipográficos son culpa del tecladito y mis dedos gordos. Inicio del mensaje reenviado: De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>> Fecha: 1 de mayo de 2015, 3:03:54 PM PDT Para: "ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>> Cc: "Sidley ICANN CCWG \(sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>\)" <sidleyicannccwg@sidley.com<mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com<mailto:ICANN@adlercolvin.com>> Asunto: [Acct-Legal] Revised memo on Unincorporated Associations, with sample Articles of Association attached Responder a: ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org> Dear Legal Sub-team: We attach a revised version of the unincorporated associations memo from April 23, 2015, which now has a description of the proposed uses of unincorporated associations in ICANN’s governance structure, and 2 new questions received since April 23, as well as some clarifying edits to prior answers to questions. We hope this is useful for the upcoming call, and perhaps as an annex to the CCWG Draft Proposal. A redline against the April 23 version will be provided shortly. Rosemary Rosemary E. Fei Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 415/421-7555<tel:415%2F421-7555> (phone) 415/421-0712<tel:415%2F421-0712> (fax) rfei@adlercolvin.com<mailto:rfei@adlercolvin.com> www.adlercolvin.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.adlercolvin.com&d=Aw...> Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. 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