I tend to think it goes without saying that representatives of organizations will be chosen in the manner in which the organizations choose individuals to represent that organization. And that the scope of a representative's authority will be the scope that the organization chooses to give those who represent it. At the very least, I think these are both implementation points. I suppose there is some danger that "representatives" could be picked by an outside force (e.g., Board Chair and GAC Chair), but I think that is vanishingly unlikely in the current context, and particularly since the individual is being chosen in an expressly representative capacity. I think we need to trust that implementation will fill small gaps such as this (if this is even a gap), especially those that relate to process. Greg On Wed, Jan 27, 2016 at 6:01 PM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

I REALLY did not meant to open any wounds or start a long thread. At yesterday's meeting, I said I would send a message listing the open issues for the ALAC.

One of them was that we noticed that there was a reference to the members of the UA comprising the Empowered Community being representatives of the SO/ACs (exactly as we have been saying for ages), but felt that it needed an additional sentence saying that each would need to be duly selected by their respective organizations.

If the CCWG feels that the elaboration is not needed, fine. But we called it out because we thought it should be looked at.

Period. There was no intent to re-open any issues or rethink how this overall empowerment was being structured.

Alan

At 27/01/2016 04:07 PM, Jordan Carter wrote:

I apologise for my overenthusiastic rush to completely agree with Chris - the part I thought was completely right is that this issue has been resolved satisfactorily.

Greg, your explanation is as ever lucid, clear, and comprehensive (but not excessive).

:-)

Jordan

On 28 January 2016 at 10:05, Greg Shatan <gregshatanipc@gmail.com > wrote: I don't think Chris is quite right, though he's close. We are not heading back to anything. A basic premise of the Third Draft Proposal is that there will be a legal entity -- an unincorporated association that will be the tool by which the community exercises the Community Powers after a decision is made to do so by the participating SO/ACs.

But individuals will not themselves provide legal personhood -- that is accomplished through the unincorporated association (the Empowered Community/Single Designator Entity (ECSDE) (or GOLEM, if you prefer that acronym)).

I suppose there is one open question, which is the process by which the unincorporated association is set up, and whether any legal or natural persons need to be involved in that. I believe it is clear that a SO/AC can be a decisional entity without having any legal or natural persons involved in setting up the unincorporated association/ECSDE/GOLEM entity.

Greg

On Wed, Jan 27, 2016 at 3:36 PM, Jordan Carter <jordan@internetnz.net.nz

...

wrote: Chris is completely right. The UA doesn't make decisions - it acts only on the instructions of the SOs and ACs. It has to have one or two humans (or entities) as members to exist, but they won't have the decision rights.

I am sure that the lawyers can point to their memos that set this all out in depth. It was discussed in great detail in the middle of 2015, and resolved....

bests Jordan

On 28 January 2016 at 09:25, Chris Disspain <ceo@auda.org.au> wrote: Hello All,

I thought the basis of the model was that either each so/ac would appoint a person to be the legal persons or a small number of nominated individuals (2 was discussed I think) would provide the required legal personhood but would not be empowered to do anything without instruction from the so/acs. We now seem to be heading back to a requirement that so/acs for lead entities in some way which is challenging for some to say the least!

Could we please get clarity on where we are at with this?

Cheers,

Chris

On 28 Jan 2016, at 05:16 , Nigel Roberts <nigel@channelisles.net > wrote:

I don't mean to be pedantic about this, but are the SOs and ACs also going to be constituted as UAs???

Otherwise, I see an issue -- surely to form the EC as a UA, the members of the UA need to be persons (whether natural or legal matters not).

So it seems to me that all the SOs and ACs need to have legal personality.

Or will the members of the EC just be the Chairs of the SOs and ACs in a personal capacity??

On 27/01/16 18:11, Gregory, Holly wrote:

We agree that the language that ALAC points to (reproduced directly below) could be clarified:

“ 3. On page 14, item 2 of the draft proposal (and on page 5 of Annex 1), it says "The members of the unincorporated association would be representatives of ICANN's Supporting Organizations and Advisory Committees that wish to participate." We have never discussed how such members are identified. Presumably we should to specify that each participating AC/SO must identify who it's representative will be.â€

The notion is that some persons are needed to ensure that the decisions of the Empowered Community are implemented. While the participating SOs and ACs will be members of the unincorporated association, each participating SO and AC should have a representative , and for simplicity we recommend that in each instance it be the chair of the AC or SO. We have addressed this notion in our memo about implementation of the unincorporated association, which we circulated a link to last week in our high level comments regarding the IRP.

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

*Sidley Austin LLP** *+1 212 839 5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com <holly.gregory@sidley.com>>

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Wednesday, January 27, 2016 9:47 AM *To:* Kavouss Arasteh *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Open ALAC Issues

Well even if we don't need it now. It will be good to recognise that it's yet to be discussed. However considering that the UA is required once board approves the proposal then it may be good to determine and conclude on this soon enough.

That said, it may be good to be sure that those member representatives have no power to act unilaterally. I would have thought using 1 stone to kill to birds will be good i.e making the various chairs/leaders of SO/AC to serve is such capacity. That gives some level of responsibility and security on that various SO/AC can always boot out their leader whenever required.

Regards

On 27 Jan 2016 15:02, "Kavouss Arasteh" < kavouss.arasteh@gmail.com < mailto:kavouss.arasteh@gmail.com <kavouss.arasteh@gmail.com>>> wrote:

Dear All,

I think people contuinue to go to the last milimiter of the road and generate a new discussion and debate about the number of représentatives in Unincorprated associattion représentatives and start a new round of

bebates and dispute

Do we need this information now pls ?

Kavouss

2016-01-27 6:14 GMT+01:00 Alan Greenberg <alan.greenberg@mcgill.ca < mailto:alan.greenberg@mcgill.ca <alan.greenberg@mcgill.ca>>>:

As per my comment in the CCWG meeting earlier today, here is a list of the issues still to be resolved from the ALAC statement on the 3rd Draft Proposal.

There are three issues currently under discussion.

1. ICANN Mission and ensuring that contract provisions will not be invalidated or be unenforceable.

2. The issue regarding market mechanisms.

3. Human Rights (original issue resolved but pending final wording).

Issues to be addressed.

1. The first is a relatively trivial one and easily addressed. Rec# 4, in the section on replacing the Interim Board states:

"SOs, ACs, and the Nominating Committee will develop replacement processes that ensure the Interim Board will not be in place for more than 120 days."

The ALAC request that this be changed to:

"SOs, ACs, and the Nominating Committee will develop processes designed to replace Interim Board members within 120 days."

By removing the word "ensure", this change, while not altering the intent, goes along with the recent practice of not putting hard deadlines in the Bylaws, deadlines that for one reason or another may not be met in a particular instance.

2. Rec# 10, AoC. The Recommendation suggests that as part of organizational reviews, the AC/SO's accountability be included in the review. The ALAC suggests that this be enshrined in Article IV, Section 4.1 of the ICANN Bylaws.

3. On page 14, item 2 of the draft proposal (and on page 5 of Annex 1), it says "The members of the unincorporated association would be representatives of ICANN's Supporting Organizations and Advisory Committees that wish to participate." We have never discussed how such members are identified. Presumably we should to specify that each participating AC/SO must identify who it's representative will be.

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org < mailto:Accountability-Cross-Community@icann.org <Accountability-Cross-Community@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...

...

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org < mailto:Accountability-Cross-Community@icann.org <Accountability-Cross-Community@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...

...

**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.

****************************************************************************************************

_______________________________________________ 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- 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

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- 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

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community