ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Hello All, On the Fundamental Bylaws (Recommendation 3), the Board has the following comment following the first reading: The Board is supportive of the changes reflected in the document after the first reading. The Board notes that while it is supportive of the inspection right being reflected as a Fundamental Bylaw, the inspection right should be noted as a right of the community, and not of the Sole Designator, to align with the Board's comments on Recommendation 1. Regards, Bruce Tonkin ICANN Board Liaison to the CCWG
Can someone explain to me what that means, in practice? el -- Sent from Dr Lisse's iPad mini 4
On 23 Jan 2016, at 11:45, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
On the Fundamental Bylaws (Recommendation 3), the Board has the following comment following the first reading:
The Board is supportive of the changes reflected in the document after the first reading. The Board notes that while it is supportive of the inspection right being reflected as a Fundamental Bylaw, the inspection right should be noted as a right of the community, and not of the Sole Designator, to align with the Board's comments on Recommendation 1.
Regards,
Bruce Tonkin
ICANN Board Liaison to the CCWG
The Board wants you to have your mind changed for you? No, upon reflection, I take that back. I admit, the above was ironic or even sarcastic. In reality, I remain as confused as you admit being. On 23/01/16 10:13, Dr Eberhard W Lisse wrote:
Can someone explain to me what that means, in practice?
el
Hello All,
The Board is supportive of the changes reflected in the document after the first reading. The Board notes that while it is supportive of the inspection right being reflected as a Fundamental Bylaw, the inspection right should be noted as a right of the community, and not of the Sole Designator, to align with the Board's comments on Recommendation 1.
Just to provide a little more context in response to questions on the list. The role of the designator is to add or remove Board directors. This role is enforceable under California law. The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members. In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws. Regards, Bruce Tonkin
Thank you. In practice, does that mean ccNSO Council must pass a resolution or ccNSO Members must pass, as example for a SO? el -- Sent from Dr Lisse's iPad mini 4
On 24 Jan 2016, at 01:59, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
The Board is supportive of the changes reflected in the document after the first reading. The Board notes that while it is supportive of the inspection right being reflected as a Fundamental Bylaw, the inspection right should be noted as a right of the community, and not of the Sole Designator, to align with the Board's comments on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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Hello Eberhard,
In practice, does that mean ccNSO Council must pass a resolution or ccNSO Members must pass, as example for a SO?
Yes - I would assume that the ccNSO would pass a resolution, and then forward a request for access to minutes or accounting records. Regards, Bruce Tonkin
El, I think whether it's the council or the members would depend on the internal rules of the SO. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA - Australia's Domain Name Administrator
On 24 Jan 2016, at 17:28, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Eberhard,
In practice, does that mean ccNSO Council must pass a resolution or ccNSO Members must pass, as example for a SO?
Yes - I would assume that the ccNSO would pass a resolution, and then forward a request for access to minutes or accounting records.
Regards, Bruce Tonkin
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Chris, Agreed. el -- Sent from Dr Lisse's iPad mini 4
On 24 Jan 2016, at 08:30, Chris Disspain <ceo@auda.org.au> wrote:
El,
I think whether it's the council or the members would depend on the internal rules of the SO.
Cheers,
Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au
auDA - Australia's Domain Name Administrator
On 24 Jan 2016, at 17:28, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Eberhard,
In practice, does that mean ccNSO Council must pass a resolution or ccNSO Members must pass, as example for a SO?
Yes - I would assume that the ccNSO would pass a resolution, and then forward a request for access to minutes or accounting records.
Regards, Bruce Tonkin
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Dear Lawyers. That was my understanding as the only difference between the COMMUNITY powers and Designator power on which I asked your legal views. Regards Kavousd Sent from my iPhone
On 24 Jan 2016, at 06:49, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
Thank you.
In practice, does that mean ccNSO Council must pass a resolution or ccNSO Members must pass, as example for a SO?
el
-- Sent from Dr Lisse's iPad mini 4
On 24 Jan 2016, at 01:59, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
The Board is supportive of the changes reflected in the document after the first reading. The Board notes that while it is supportive of the inspection right being reflected as a Fundamental Bylaw, the inspection right should be noted as a right of the community, and not of the Sole Designator, to align with the Board's comments on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal. The Designator is an integral part of the Empowered Community. We accepted the diminution of power and leverage that came with the shift from Single Member to Single Designator. We should not further diminish the role of the Single Designator by reducing it to its statutorily-defined designator powers. (Technically, the designator should have inspection powers as well, to the extent that such inspection may be useful as the community seeks to exercise its powers through the Designator. As a practical matter, this can be solved by having any of the SOs or ACs exercise the inspection right, so we're covered that way.) Greg On Sat, Jan 23, 2016 at 6:59 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
The Board is supportive of the changes reflected in the document after
the first reading. The Board notes that while it is supportive of the inspection right being reflected as a Fundamental Bylaw, the inspection right should be noted as a right of the community, and not of the Sole Designator, to align with the Board's comments on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not the
reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members. I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC. Hopefully this close this particular item. Regards on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors. This
role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can
exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the
designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Seun, You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly. We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator. So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed. Greg On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors. This
role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can
exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Hi, I agree that enforcement is the smallest part of future behaviors, despite the fact that it is a motivator. I thought the designator was the way in which the community, which makes up that designator, expressed its will. avri On 24-Jan-16 12:02, Greg Shatan wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for _exercising_ a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: > > I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal. > SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1. >> >> Just to provide a little more context in response to questions on the list. >> >> The role of the designator is to add or remove Board directors. This role is enforceable under California law. >> >> The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members. >> >> In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws. >> >> Regards, >> Bruce Tonkin >> >> _______________________________________________ >> 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> > https://mm.icann.org/mailman/listinfo/accountability-cross-community >
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Hi Greg, I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document. In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such. Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors. This
role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can
exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear Holly Dear Co -Chairs You see how each individual interprets the Role of designator. There is a total divergence of views about the role, scope of responsibilities of Designator. This this issue is not clarified and agreed by Consensus among the ntire CCWG, THE WHOLE PROCESS IS AT RISK. Consequently, it is absolutely indispensable and necessary that we have a formal legal view on the matter in a fomal Memo from Sidley and Adler cosigned by the representatioves of both Law Firms Regards Kavousd 2016-01-24 19:25 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors.
This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO
can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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Happy to weigh in if certified c Sent with Good (www.good.com) ________________________________ From: Kavouss Arasteh Sent: Sunday, January 24, 2016 12:56:43 PM To: Gregory, Holly; Mathieu Weill; Thomas Rickert; León Felipe Sánchez Ambía Cc: Greg Shatan; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws Dear Holly Dear Co -Chairs You see how each individual interprets the Role of designator. There is a total divergence of views about the role, scope of responsibilities of Designator. This this issue is not clarified and agreed by Consensus among the ntire CCWG, THE WHOLE PROCESS IS AT RISK. Consequently, it is absolutely indispensable and necessary that we have a formal legal view on the matter in a fomal Memo from Sidley and Adler cosigned by the representatioves of both Law Firms Regards Kavousd 2016-01-24 19:25 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Hi Greg, I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document. In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such. Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Seun, You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for exercising a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly. We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator. So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed. Greg On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members. I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC. Hopefully this close this particular item. Regards on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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I am sorry There is big difference between you two on the scope of responsibility and role of designator . What Seun said is exactly what Bruce said and is totally different from what Grec said. We have moved from Sole Member Concept to Sole designator Concept before all of us gave the same understanding from Sole Designator Concept whereas at least the overwhelming majority if us knew what was Sole Member Concept Regards Kavouss Sent from my iPhone
On 24 Jan 2016, at 19:25, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote: Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for exercising a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote: On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws. I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals. Even if people are confused about this, there is no problem in substance to resolve. Cheers Jordan On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com <javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com <javascript:_e(%7B%7D,'cvml','seun.ojedeji@gmail.com');>> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com <javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors.
This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO
can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz Sent on the run, apologies for brevity
Recommendation 1 states: . The entity created using the Sole Designator model will be referred to as the “Empowered Community.” (Summary, Page 1, bullet point 3). In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists. Greg On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on
the list.
The role of the designator is to add or remove Board directors.
This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO
can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
One wonders why one doesn't call it Sole Designator. el On 2016-01-26 06:42, Greg Shatan wrote:
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.” (Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Dear Jordan, Welcome back to the scene. Now there are three different interpretations of Designator 1. From Bruce 2. From Grec and few others 3 .From Jordan See the corresponding messages from these three distinguished colleagues In my view the third one is more close to the reality ( the manner in which community powers are described in all three CCWG proposals However, we need to have the views of the Lawyers and consensus agreement of CCWG Regards Kavouss 2016-01-26 7:54 GMT+01:00 Dr Eberhard W Lisse <el@lisse.na>:
One wonders why one doesn't call it Sole Designator.
el
On 2016-01-26 06:42, Greg Shatan wrote:
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.” (Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms. We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email. “Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date. As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept. Kind regards, Hlly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, January 25, 2016 11:42 PM To: Jordan Carter Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws Recommendation 1 states: . The entity created using the Sole Designator model will be referred to as the “Empowered Community.” (Summary, Page 1, bullet point 3). In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists. Greg On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws. I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals. Even if people are confused about this, there is no problem in substance to resolve. Cheers Jordan On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Greg, I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document. In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such. Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Seun, You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for exercising a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly. We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator. So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed. Greg On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members. I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC. Hopefully this close this particular item. Regards on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649<tel:%2B64-21-442-649> | jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity **************************************************************************************************** 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. ****************************************************************************************************
Holly, Thank you for clarifying that! Greg On Tue, Jan 26, 2016 at 3:37 PM, Gregory, Holly <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors. This
role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can
exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
**************************************************************************************************** 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.
****************************************************************************************************
Thank you Holly for the clarification. This has been my understanding as well. One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw. In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw). Regards On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors. This
role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can
exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
**************************************************************************************************** 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
Dear Sean and all: You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws. The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers. I hope that answers your question. Rosemary From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Tuesday, January 26, 2016 9:41 PM To: Holly Gregory Cc: Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org; León Felipe Sánchez Ambía; Mathieu Weill Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Thank you Holly for the clarification. This has been my understanding as well. One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw. In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw). Regards On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms. We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email. “Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date. As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept. Kind regards, Hlly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Monday, January 25, 2016 11:42 PM To: Jordan Carter Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws Recommendation 1 states: . The entity created using the Sole Designator model will be referred to as the “Empowered Community.” (Summary, Page 1, bullet point 3). In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists. Greg On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws. I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals. Even if people are confused about this, there is no problem in substance to resolve. Cheers Jordan On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Greg, I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document. In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such. Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Seun, You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for exercising a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly. We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator. So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed. Greg On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members. I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC. Hopefully this close this particular item. Regards on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649<tel:%2B64-21-442-649> | jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity **************************************************************************************************** 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<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Thanks a lot Rosemary that answers my question perfectly. Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
Dear Sean and all:
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws.
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.
I hope that answers your question.
Rosemary
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Thank you Holly for the clarification. This has been my understanding as well.
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).
Regards
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors. This
role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can
exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
**************************************************************************************************** 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.
****************************************************************************************************
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Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss 2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Thanks a lot Rosemary that answers my question perfectly.
Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
Dear Sean and all:
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws.
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.
I hope that answers your question.
Rosemary
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Thank you Holly for the clarification. This has been my understanding as well.
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).
Regards
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors. This
role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can
exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
**************************************************************************************************** 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.
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Hello Kavous, I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal). I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained). Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com> wrote:
Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss
2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Thanks a lot Rosemary that answers my question perfectly.
Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
Dear Sean and all:
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws.
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.
I hope that answers your question.
Rosemary
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Thank you Holly for the clarification. This has been my understanding as well.
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).
Regards
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors.
This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO
can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
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Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote "* does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law*" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " *Empowred Community"/" Sole Designator " in regard *with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss 2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Hello Kavous,
I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal).
I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained).
Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com> wrote:
Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss
2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Thanks a lot Rosemary that answers my question perfectly.
Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
Dear Sean and all:
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws.
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.
I hope that answers your question.
Rosemary
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Thank you Holly for the clarification. This has been my understanding as well.
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).
Regards
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter < jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on
the list.
The role of the designator is to add or remove Board directors.
This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO
can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
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Hi Kavouss, I will discuss with Rosemary and respond later today. Of course we have deep respect for you and the CCWG. Kind regards, Holly Sent with Good (www.good.com) ________________________________ From: Kavouss Arasteh Sent: Wednesday, January 27, 2016 08:44:38 AM To: Seun Ojedeji Cc: Rosemary E. Fei; ACCT-Staff; Gregory, Holly; Sidley ICANN CCWG; Thomas Rickert; accountability-cross-community@icann.org; ICANN-Adler Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote " does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " Empowred Community"/" Sole Designator " in regard with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss 2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Hello Kavous, I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal). I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained). Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss 2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Thanks a lot Rosemary that answers my question perfectly. Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>> wrote: Dear Sean and all: You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws. The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers. I hope that answers your question. Rosemary From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>] Sent: Tuesday, January 26, 2016 9:41 PM To: Holly Gregory Cc: Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; León Felipe Sánchez Ambía; Mathieu Weill Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Thank you Holly for the clarification. This has been my understanding as well. One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw. In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw). Regards On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms. We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email. “Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date. As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept. Kind regards, Hlly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Monday, January 25, 2016 11:42 PM To: Jordan Carter Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws Recommendation 1 states: . The entity created using the Sole Designator model will be referred to as the “Empowered Community.” (Summary, Page 1, bullet point 3). In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists. Greg On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws. I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals. Even if people are confused about this, there is no problem in substance to resolve. Cheers Jordan On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Greg, I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document. In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such. Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Seun, You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for exercising a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly. We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator. So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed. Greg On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members. I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC. Hopefully this close this particular item. Regards on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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Dear all, dear Kavouss I don't feel any questions on my part are missing. I am clear and I think from this whole thread, it is clear to everyone that there is one entity - the Empowered Community. It is established as an unincorporated association, and it has all the powers we will give it through the ICANN bylaws. One of those powers is appointment and removal of directors. It can back those powers up in Court if need be because it is recognised as a Designator under the law of California. So: the powers are set out in the bylaws as per our report. The single entity is the Empowered Community. It is the Sole Designator. I'm happy and don't need any legal input, and my reading is that we are all on the same page. bests Jordan On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote "* does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law*" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " *Empowred Community"/" Sole Designator " in regard *with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss
2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Hello Kavous,
I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal).
I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained).
Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com> wrote:
Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss
2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Thanks a lot Rosemary that answers my question perfectly.
Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
Dear Sean and all:
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws.
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.
I hope that answers your question.
Rosemary
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Thank you Holly for the clarification. This has been my understanding as well.
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).
Regards
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter < jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but
not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
> > Just to provide a little more context in response to questions on the list. > > The role of the designator is to add or remove Board directors. This role is enforceable under California law. > > The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members. > > In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws. > > Regards, > Bruce Tonkin > > _______________________________________________ > Accountability-Cross-Community mailing list > 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...>
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+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
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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 *
Jordan, Succinct and accurate. Thank you. I will just emphasize and reiterate one part of your message: The Empowered Community "has all the powers we will give it through the ICANN bylaws" including the power to appoint and remove directors. Since this last power is defined by California statute as the "designator" right, we have been calling the "Empowered Community" the "Sole Designator," and vice versa. If one wants to see the "powers" of the Empowered Community/Sole Designator Entity (ECSDE?) one just needs to look at the community powers in our proposal. Where the community comes together (more or less) as one, that's the ECSDE. Of course, we should come up with a better name for this and use only one name rather than two, which has sowed confusion. One suggestion: Good Old Legal Empowerment Mechanism (GOLEM). I feel this is all clear. Greg On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Dear all, dear Kavouss
I don't feel any questions on my part are missing.
I am clear and I think from this whole thread, it is clear to everyone that there is one entity - the Empowered Community. It is established as an unincorporated association, and it has all the powers we will give it through the ICANN bylaws. One of those powers is appointment and removal of directors. It can back those powers up in Court if need be because it is recognised as a Designator under the law of California.
So: the powers are set out in the bylaws as per our report. The single entity is the Empowered Community. It is the Sole Designator.
I'm happy and don't need any legal input, and my reading is that we are all on the same page.
bests Jordan
On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote "* does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law*" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " *Empowred Community"/" Sole Designator " in regard *with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss
2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Hello Kavous,
I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal).
I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained).
Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com> wrote:
Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss
2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Thanks a lot Rosemary that answers my question perfectly.
Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
Dear Sean and all:
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws.
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.
I hope that answers your question.
Rosemary
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Thank you Holly for the clarification. This has been my understanding as well.
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).
Regards
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter < jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji < seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote: > > I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal. > SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1. >> >> Just to provide a little more context in response to questions on the list. >> >> The role of the designator is to add or remove Board directors. This role is enforceable under California law. >> >> The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members. >> >> In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws. >> >> Regards, >> Bruce Tonkin >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> 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 > https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> >
-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
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*A better world through a better Internet *
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Dear Jordan, Yes I have already agreed to your views but there are two other parties at each extereme side that should agree . That is why I asked Lawyers to shed some light with a view that every body would be clear. Kavouss 2016-01-27 21:56 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:
Jordan,
Succinct and accurate. Thank you.
I will just emphasize and reiterate one part of your message: The Empowered Community "has all the powers we will give it through the ICANN bylaws" including the power to appoint and remove directors. Since this last power is defined by California statute as the "designator" right, we have been calling the "Empowered Community" the "Sole Designator," and vice versa.
If one wants to see the "powers" of the Empowered Community/Sole Designator Entity (ECSDE?) one just needs to look at the community powers in our proposal. Where the community comes together (more or less) as one, that's the ECSDE.
Of course, we should come up with a better name for this and use only one name rather than two, which has sowed confusion. One suggestion: Good Old Legal Empowerment Mechanism (GOLEM).
I feel this is all clear.
Greg
On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Dear all, dear Kavouss
I don't feel any questions on my part are missing.
I am clear and I think from this whole thread, it is clear to everyone that there is one entity - the Empowered Community. It is established as an unincorporated association, and it has all the powers we will give it through the ICANN bylaws. One of those powers is appointment and removal of directors. It can back those powers up in Court if need be because it is recognised as a Designator under the law of California.
So: the powers are set out in the bylaws as per our report. The single entity is the Empowered Community. It is the Sole Designator.
I'm happy and don't need any legal input, and my reading is that we are all on the same page.
bests Jordan
On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote "* does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law*" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " *Empowred Community"/" Sole Designator " in regard *with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss
2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Hello Kavous,
I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal).
I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained).
Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com> wrote:
Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss
2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Thanks a lot Rosemary that answers my question perfectly.
Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
> Dear Sean and all: > > > > You are correct. The power to designate (and correspondingly to > remove) directors is one of the powers that will be given to the Empowered > Community in the Bylaws. You could also say that acting as ICANN’s “sole > designator” is one of the Empowered Community’s roles in the proposed > accountability structure, along with other roles and powers that will also > be given to the Empowered Community in the Bylaws. > > > > The Empowered Community could be given the other powers (except the > removal right) without giving it the power to designate directors – those > other powers can legally be given to any third party, not just one that > holds designator powers. > > > > I hope that answers your question. > > > > Rosemary > > > > *From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] > *Sent:* Tuesday, January 26, 2016 9:41 PM > *To:* Holly Gregory > *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; > accountability-cross-community@icann.org; León Felipe Sánchez > Ambía; Mathieu Weill > *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": > ICANN Board comments - Recommendation 3 - Fundamental Bylaws > > > > Thank you Holly for the clarification. This has been my > understanding as well. > > One other thing that I would appreciate if clarified is to know > whether the "empowered community" is able to carry out the other roles > (like approval of bylaws et all) because it is the designator or just > because it is the unincorporated entity setup as the third party to perform > those roles in the bylaw. > > In other words the unincorporated entity doubles as both the > designator (with the power as described under California law) and the > "enhanced community" (with the other powers as described in the bylaw). > > Regards > > On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> > wrote: > > Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, > > > > We have been monitoring the recent discussion on the CCWG-ACCT > listserv about the use of the terms “community”, “Empowered Community”, and > “Sole Designator” in the draft Proposal, and we wish to share our > understanding of these terms. > > > > We agree that the word “community” as used in the draft > Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and > their individual members, but also those who participate in ICANN meetings > and processes, as explained by Bruce Tonkin in his January 24 email. > > > > “Empowered Community” is the name to be given to an unincorporated > association to be created in ICANN’s Bylaws. This new entity has also been > described as the “Sole Designator,” but that term -- which arose from the > new entity’s function as ICANN’s sole designator -- does not adequately > describe the other important roles for the new entity, which extend well > beyond the rights given to designators by California corporate law. > Therefore, the “Empowered Community” is a more appropriate reference, and > it has been used interchangeably with “Sole Designator” to date. > > > > As a global final edit, we recommend using “Empowered Community” > consistently to refer to the new legal entity, after the first discussion > of the sole designator concept. > > > > Kind regards, > > Hlly and Rosemary > > > > > > *HOLLY* *GREGORY* > Partner > > *Sidley Austin LLP* > +1 212 839 5853 > holly.gregory@sidley.com > > > > *From:* accountability-cross-community-bounces@icann.org [mailto: > accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg > Shatan > *Sent:* Monday, January 25, 2016 11:42 PM > *To:* Jordan Carter > *Cc:* accountability-cross-community@icann.org > *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 > - Fundamental Bylaws > > > > Recommendation 1 states: > > > > . The entity created using the Sole Designator model will be > referred to as the “Empowered Community.” > > (Summary, Page 1, bullet point 3). > > > > In other words the Sole Designator is the Empowered Community, and > vice versa. You are introducing a dichotomy where none exists. > > > > Greg > > > > On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter < > jordan@internetnz.net.nz> wrote: > > This isn't quite right - as far as I am aware the entity that is the > Sole Designator will have the right to appoint and remove directors, and be > the 'third party' that can approve changes to Icann fundamental bylaws or > block changes to Icann standard bylaws. > > > > I'm not sure this is a revelation of any sort, or causes any > confusion at all. These powers along with all the others will be set out in > the bylaws, as has been the case all along. The only distinguishing feature > is that the legislation in California gives designators the director > rights, and gives the right of the articles / bylaws to include third party > approvals. > > > > Even if people are confused about this, there is no problem in > substance to resolve. > > > > > > Cheers > > Jordan > > > > On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> > wrote: > > Hi Greg, > > I don't think we are in disagreement in the substance of all these. > It's just the naming we are in disagreement upon and I am still of the > opinion that a designator only has the statutory power to remove/add board > members. > > All other powers/process we have managed to put in the bylaw may > need to be called/named something else as they are not made possible > because of the designator but rather because of the fact that they are now > written in the bylaw and the board normally would want to respect such a > document. > > In anycase, unless there is any other change you think has been > proposed other than giving inspection rights to the community (which you > and I are in agreement) that affects the current proposal, I don't see any > reason to still consider this open as such. > > Regards > > On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote: > > Seun, > > > > You misunderstand me. The Designator does more than "enforce" > powers. Under our proposal, the designator is also the vehicle for > *exercising* a number of the powers (e.g., approving/rejecting > bylaws). The exercise of the new powers by the designator will be a much > more common occurrence than the enforcement of those powers by removing > directors. I anticipate the latter will rarely (if ever) occur, though the > fact it can occur is part of our accountability framework. There are other > reasons for the Board to comply with the community's exercise of its > powers, aside from sheer terror at being removed. For one thing, these > powers are enshrined in the bylaws, and the Board (like any Board) will not > take the prospect of violating our Bylaws lightly. > > > > We have had a tendency to overemphasize the enforcement end of > things, and I think this is one more action in that vein. Let's try to > avoid that. Just like our proposal is about far more than "enforcement," > so is the Single Designator. > > > > So, no, your statement did not "close this particular item." > Rather, it demonstrates exactly why this item is not really closed. > > > > Greg > > > > On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji < > seun.ojedeji@gmail.com> wrote: > > On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote: > > > > I agree with the result the Board came to (at least in part), but > not the reasoning. Each SO or AC should have the right to inspect. > However, the role of the Designator is not merely to "add or remove Board > members." The Designator plays a critical role in the exercise of several > of the powers, in addition to its role in enforcing those powers via > director removal. > > > SO: I guess Bruce was rightly mentioning the powers of the > designator. I believe we we will only be getting those powers enforced as a > result of the "add/remove" power of the designator. > > So in summary we don't get enforcement of the various powers because > it's a role of the designator but on the basis that the designator may use > its only statutory power, which is to add/remove board members. > > I generally agree with the result and would have even preferred that > a threshold be required for inspection. However, on the basis that each > SO/AC may need access to certain information to make informed/independent > decisions, it makes sense to allow such right to each SO/AC. > > Hopefully this close this particular item. > > Regards > > on Recommendation 1. > >> > >> Just to provide a little more context in response to questions on > the list. > >> > >> The role of the designator is to add or remove Board directors. > This role is enforceable under California law. > >> > >> The inspection right is a right for the ACs and SOs. An AC or > SO can exercise this right independently of the legal entity that will be > the sole designator. If ICANN doesn't respond to an appropriate request > from an SO or AC, it would be in breach of its bylaws. The community can > then use the IRP to get a binding decision. In the unlikely event that > the Board does not comply with the outcome of the IRP decision, then the > designator has the power to remove Board members. > >> > >> In the bylaws we want to make sure that we don't confuse the role > of the designator (add or remove Board members) with the various roles of > the SO and ACs in the bylaws. The bylaws are primarily enforced by the > IRP, and then the designator (via removal of Board directors) if the IRP is > not complied with, and then the courts if the decision of the designator is > not complied with. This is a clear escalation path that applies to all > bylaws. > >> > >> Regards, > >> Bruce Tonkin > >> > >> _______________________________________________ > >> Accountability-Cross-Community mailing list > >> 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 > > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > > > > > > -- > Jordan Carter > Chief Executive, InternetNZ > > +64-21-442-649 | jordan@internetnz.net.nz > > Sent on the run, apologies for brevity > > > > > > > **************************************************************************************************** > 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 >
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Chief Executive *InternetNZ*
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*A better world through a better Internet *
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Kavouss, we have prepared a response that Rosemary will send you shortly. My computer has crashed. Kind regards, Holly Sent with Good (www.good.com) ________________________________ From: Kavouss Arasteh Sent: Wednesday, January 27, 2016 04:14:43 PM To: Greg Shatan Cc: Jordan Carter; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Dear Jordan, Yes I have already agreed to your views but there are two other parties at each extereme side that should agree . That is why I asked Lawyers to shed some light with a view that every body would be clear. Kavouss 2016-01-27 21:56 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: Jordan, Succinct and accurate. Thank you. I will just emphasize and reiterate one part of your message: The Empowered Community "has all the powers we will give it through the ICANN bylaws" including the power to appoint and remove directors. Since this last power is defined by California statute as the "designator" right, we have been calling the "Empowered Community" the "Sole Designator," and vice versa. If one wants to see the "powers" of the Empowered Community/Sole Designator Entity (ECSDE?) one just needs to look at the community powers in our proposal. Where the community comes together (more or less) as one, that's the ECSDE. Of course, we should come up with a better name for this and use only one name rather than two, which has sowed confusion. One suggestion: Good Old Legal Empowerment Mechanism (GOLEM). I feel this is all clear. Greg On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Dear all, dear Kavouss I don't feel any questions on my part are missing. I am clear and I think from this whole thread, it is clear to everyone that there is one entity - the Empowered Community. It is established as an unincorporated association, and it has all the powers we will give it through the ICANN bylaws. One of those powers is appointment and removal of directors. It can back those powers up in Court if need be because it is recognised as a Designator under the law of California. So: the powers are set out in the bylaws as per our report. The single entity is the Empowered Community. It is the Sole Designator. I'm happy and don't need any legal input, and my reading is that we are all on the same page. bests Jordan On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote " does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " Empowred Community"/" Sole Designator " in regard with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss 2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Hello Kavous, I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal). I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained). Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss 2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Thanks a lot Rosemary that answers my question perfectly. Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>> wrote: Dear Sean and all: You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws. The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers. I hope that answers your question. Rosemary From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>] Sent: Tuesday, January 26, 2016 9:41 PM To: Holly Gregory Cc: Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; León Felipe Sánchez Ambía; Mathieu Weill Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Thank you Holly for the clarification. This has been my understanding as well. One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw. In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw). Regards On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms. We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email. “Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date. As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept. Kind regards, Hlly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Monday, January 25, 2016 11:42 PM To: Jordan Carter Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws Recommendation 1 states: . The entity created using the Sole Designator model will be referred to as the “Empowered Community.” (Summary, Page 1, bullet point 3). In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists. Greg On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws. I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals. Even if people are confused about this, there is no problem in substance to resolve. Cheers Jordan On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Greg, I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document. In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such. Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Seun, You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for exercising a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly. We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator. So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed. Greg On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members. I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC. Hopefully this close this particular item. Regards on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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Dear Co-Chairs, Kavouss, and All: And here is the response referred to in Holly's email below. (If it looks familiar, it's because Holly and I accidentally included the list in our counsel-to-counsel emails drafting it. Please ignore the little man behind the curtain.) In response to your request that we more specifically address the points made by Bruce and commented on by Greg, Jordan and others, we comment as follows: · We agree with Bruce's broad concept of the term "community" to mean "the aggregate of all those that attend ICANN meetings either physically (attending face-to-face meetings) or virtually (members of mailing lists, contributors to online forums etc). This also includes all the members of the constituency bodies - the RIRs, the SOs, the stakeholder groups, constituencies, the advisory committees etc." And this concept would include the Board and its members and the CCWG-ACCT and its members, etc. (We see this as a conceptual description and not a formal definition. As a definition it would need word-smithing. ) · Bruce is also partially correct in describing the Empowered Community as "a construct in the bylaws similar to the construct for SOs and ACs", but it is different from the ACs and SOs in that the Empowered Community will be expressly created in the bylaws as an unincorporated association to ensure that it has the legal personhood needed to enforce its legal rights. One of the sets of rights it will have will relate to its role as the sole designator. · Therefore, Greg is correct in stating that, as described in the Third Proposal, "[T]he entity [meaning the unincorporated association] created using the Sole Designator model will be referred to as the 'Empowered Community.'" (Third Proposal Summary, Page 1, bullet point 3). The Bylaws will give the Empowered Community the power to designate ICANN's directors (which is permitted by California statute, and which power, by statute, brings with it the corresponding right to remove them), giving the Empowered Community the role of ICANN's "sole designator." (The Empowered Community will only designate or remove directors as directed by the SOs and ACs and the Nominating Committee following the procedures described in the CCWG proposal which will be drafted into the Bylaws, thereby implementing each group's specific role in naming directors.) · The Empowered Community, in addition to being sole designator, will have the powers proposed by the CCWG to be provided in the Bylaws: approval of standard and fundamental Bylaws, etc., etc., and enforcement rights. Acting as ICANN's "sole designator" is thus only one of the Empowered Community's roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws. · Given that the Empowered Community will be organized as an unincorporated association and take on -- but not be limited to -- the role of sole designator, Bruce's description of the sole designator in his final bullet is partially but not wholly correct. The Empowered Community will be the sole designator; there is no entity or "Sole Designator" separate from the Empowered Community that will hold that function. We hope you find this responsive to your request. Kind regards, Holly and Rosemary From: Holly Gregory Sent: Wednesday, January 27, 2016 2:21 PM To: Kavouss Arasteh; Greg Shatan Cc: Jordan Carter; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG; Rosemary E. Fei; ICANN-Adler; Sidley ICANN CCWG Subject: RE: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Kavouss, we have prepared a response that Rosemary will send you shortly. My computer has crashed. Kind regards, Holly Sent with Good (www.good.com<http://www.good.com>) ________________________________ From: Kavouss Arasteh Sent: Wednesday, January 27, 2016 04:14:43 PM To: Greg Shatan Cc: Jordan Carter; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; ACCT-Staff; Sidley ICANN CCWG Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Dear Jordan, Yes I have already agreed to your views but there are two other parties at each extereme side that should agree . That is why I asked Lawyers to shed some light with a view that every body would be clear. Kavouss 2016-01-27 21:56 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: Jordan, Succinct and accurate. Thank you. I will just emphasize and reiterate one part of your message: The Empowered Community "has all the powers we will give it through the ICANN bylaws" including the power to appoint and remove directors. Since this last power is defined by California statute as the "designator" right, we have been calling the "Empowered Community" the "Sole Designator," and vice versa. If one wants to see the "powers" of the Empowered Community/Sole Designator Entity (ECSDE?) one just needs to look at the community powers in our proposal. Where the community comes together (more or less) as one, that's the ECSDE. Of course, we should come up with a better name for this and use only one name rather than two, which has sowed confusion. One suggestion: Good Old Legal Empowerment Mechanism (GOLEM). I feel this is all clear. Greg On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Dear all, dear Kavouss I don't feel any questions on my part are missing. I am clear and I think from this whole thread, it is clear to everyone that there is one entity - the Empowered Community. It is established as an unincorporated association, and it has all the powers we will give it through the ICANN bylaws. One of those powers is appointment and removal of directors. It can back those powers up in Court if need be because it is recognised as a Designator under the law of California. So: the powers are set out in the bylaws as per our report. The single entity is the Empowered Community. It is the Sole Designator. I'm happy and don't need any legal input, and my reading is that we are all on the same page. bests Jordan On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote " does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " Empowred Community"/" Sole Designator " in regard with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss 2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Hello Kavous, I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal). I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained). Regards On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss 2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Thanks a lot Rosemary that answers my question perfectly. Regards On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com<mailto:rfei@adlercolvin.com>> wrote: Dear Sean and all: You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN's "sole designator" is one of the Empowered Community's roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws. The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors - those other powers can legally be given to any third party, not just one that holds designator powers. I hope that answers your question. Rosemary From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>] Sent: Tuesday, January 26, 2016 9:41 PM To: Holly Gregory Cc: Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; León Felipe Sánchez Ambía; Mathieu Weill Subject: Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws Thank you Holly for the clarification. This has been my understanding as well. One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw. In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw). Regards On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms "community", "Empowered Community", and "Sole Designator" in the draft Proposal, and we wish to share our understanding of these terms. We agree that the word "community" as used in the draft Proposal encompasses not only ICANN's Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email. "Empowered Community" is the name to be given to an unincorporated association to be created in ICANN's Bylaws. This new entity has also been described as the "Sole Designator," but that term -- which arose from the new entity's function as ICANN's sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the "Empowered Community" is a more appropriate reference, and it has been used interchangeably with "Sole Designator" to date. As a global final edit, we recommend using "Empowered Community" consistently to refer to the new legal entity, after the first discussion of the sole designator concept. Kind regards, Hlly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Monday, January 25, 2016 11:42 PM To: Jordan Carter Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws Recommendation 1 states: . The entity created using the Sole Designator model will be referred to as the "Empowered Community." (Summary, Page 1, bullet point 3). In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists. Greg On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws. I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals. Even if people are confused about this, there is no problem in substance to resolve. Cheers Jordan On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Greg, I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document. In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such. Regards On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Seun, You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for exercising a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly. We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator. So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed. Greg On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members. I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC. Hopefully this close this particular item. Regards on Recommendation 1.
Just to provide a little more context in response to questions on the list.
The role of the designator is to add or remove Board directors. This role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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Thanks all - very clear Jordan On 28 January 2016 at 12:36, Rosemary E. Fei <rfei@adlercolvin.com> wrote:
Dear Co-Chairs, Kavouss, and All:
And here is the response referred to in Holly’s email below. (If it looks familiar, it’s because Holly and I accidentally included the list in our counsel-to-counsel emails drafting it. Please ignore the little man behind the curtain.)
In response to your request that we more specifically address the points made by Bruce and commented on by Greg, Jordan and others, we comment as follows:
· We agree with Bruce’s broad concept of the term “community” to mean “the aggregate of all those that attend ICANN meetings either physically (attending face-to-face meetings) or virtually (members of mailing lists, contributors to online forums etc). This also includes all the members of the constituency bodies – the RIRs, the SOs, the stakeholder groups, constituencies, the advisory committees etc.” And this concept would include the Board and its members and the CCWG-ACCT and its members, etc. (We see this as a conceptual description and not a formal definition. As a definition it would need word-smithing. )
· Bruce is also partially correct in describing the Empowered Community as “a construct in the bylaws similar to the construct for SOs and ACs”, but it is different from the ACs and SOs in that the Empowered Community will be expressly created in the bylaws as an unincorporated association to ensure that it has the legal personhood needed to enforce its legal rights. One of the sets of rights it will have will relate to its role as the sole designator.
· Therefore, Greg is correct in stating that, as described in the Third Proposal, “[T]he entity [meaning the unincorporated association] created using the Sole Designator model will be referred to as the ‘Empowered Community.’” (Third Proposal Summary, Page 1, bullet point 3). The Bylaws will give the Empowered Community the power to designate ICANN’s directors (which is permitted by California statute, and which power, by statute, brings with it the corresponding right to remove them), giving the Empowered Community the role of ICANN’s “sole designator.” (The Empowered Community will only designate or remove directors as directed by the SOs and ACs and the Nominating Committee following the procedures described in the CCWG proposal which will be drafted into the Bylaws, thereby implementing each group’s specific role in naming directors.)
· The Empowered Community, in addition to being sole designator, will have the powers proposed by the CCWG to be provided in the Bylaws: approval of standard and fundamental Bylaws, etc., etc., and enforcement rights. Acting as ICANN’s “sole designator” is thus only one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws.
· Given that the Empowered Community will be organized as an unincorporated association and take on -- but not be limited to -- the role of sole designator, Bruce’s description of the sole designator in his final bullet is partially but not wholly correct. The Empowered Community will be the sole designator; there is no entity or “Sole Designator” separate from the Empowered Community that will hold that function.
We hope you find this responsive to your request.
Kind regards, Holly and Rosemary
*From:* Holly Gregory *Sent:* Wednesday, January 27, 2016 2:21 PM *To:* Kavouss Arasteh; Greg Shatan *Cc:* Jordan Carter; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG; Rosemary E. Fei; ICANN-Adler; Sidley ICANN CCWG *Subject:* RE: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Kavouss, we have prepared a response that Rosemary will send you shortly. My computer has crashed. Kind regards, Holly
Sent with Good (www.good.com)
------------------------------
*From:* Kavouss Arasteh *Sent:* Wednesday, January 27, 2016 04:14:43 PM *To:* Greg Shatan *Cc:* Jordan Carter; ICANN-Adler; Thomas Rickert; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Dear Jordan,
Yes I have already agreed to your views but there are two other parties at each extereme side that should agree . That is why I asked Lawyers to shed some light with a view that every body would be clear.
Kavouss
2016-01-27 21:56 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:
Jordan,
Succinct and accurate. Thank you.
I will just emphasize and reiterate one part of your message: The Empowered Community "has all the powers we will give it through the ICANN bylaws" including the power to appoint and remove directors. Since this last power is defined by California statute as the "designator" right, we have been calling the "Empowered Community" the "Sole Designator," and vice versa.
If one wants to see the "powers" of the Empowered Community/Sole Designator Entity (ECSDE?) one just needs to look at the community powers in our proposal. Where the community comes together (more or less) as one, that's the ECSDE.
Of course, we should come up with a better name for this and use only one name rather than two, which has sowed confusion. One suggestion: Good Old Legal Empowerment Mechanism (GOLEM).
I feel this is all clear.
Greg
On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Dear all, dear Kavouss
I don't feel any questions on my part are missing.
I am clear and I think from this whole thread, it is clear to everyone that there is one entity - the Empowered Community. It is established as an unincorporated association, and it has all the powers we will give it through the ICANN bylaws. One of those powers is appointment and removal of directors. It can back those powers up in Court if need be because it is recognised as a Designator under the law of California.
So: the powers are set out in the bylaws as per our report. The single entity is the Empowered Community. It is the Sole Designator.
I'm happy and don't need any legal input, and my reading is that we are all on the same page.
bests
Jordan
On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear Holly
No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) .
You said the following
Quote
"* does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law*"
Unquote
The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law"
This portion is totally vague and does not any thing as requested
Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " *Empowred Community"/" Sole Designator " in regard *with what contained in the Article of incorporation, and proposed Bylaws.
As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments
Regards
Kavouss
2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Hello Kavous,
I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal).
I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained).
Regards
On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com> wrote:
Dear Holly
Dear Rosemary
Thank you very much for definition
However, the problem that was raised was not the definition but the scope of responsibility and mandate
There were three options
View one; From Bruce
View Two FromGrec
View three;From Jordan
Please kindly carefully study these three and comment in favour of one or other or a combination of those three.
The three designator came first from you in APRIL 2015
tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion.
I agree that the latter is more appropriate but the problem raised was different as described above.
Either you wish to reply or not but please kindly reply to the question raised
Regards
Kavouss
2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Thanks a lot Rosemary that answers my question perfectly.
Regards
On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com> wrote:
Dear Sean and all:
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws.
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.
I hope that answers your question.
Rosemary
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Thank you Holly for the clarification. This has been my understanding as well.
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).
Regards
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff,
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date.
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept.
Kind regards,
Hlly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws
Recommendation 1 states:
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”
(Summary, Page 1, bullet point 3).
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.
Greg
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.
Even if people are confused about this, there is no problem in substance to resolve.
Cheers
Jordan
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members.
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.
Regards
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun,
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for *exercising* a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.
Greg
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
I agree with the result the Board came to (at least in part), but not
the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal.
SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator.
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.
Hopefully this close this particular item.
Regards
on Recommendation 1.
Just to provide a little more context in response to questions on the
list.
The role of the designator is to add or remove Board directors. This
role is enforceable under California law.
The inspection right is a right for the ACs and SOs. An AC or SO can
exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members.
In the bylaws we want to make sure that we don't confuse the role of
the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws.
Regards, Bruce Tonkin
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+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
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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
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*A better world through a better Internet *
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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 *
Like us all, it has feet of clay. On 27/01/16 20:56, Greg Shatan wrote:
Jordan,
Succinct and accurate. Thank you.
I will just emphasize and reiterate one part of your message: The Empowered Community "has all the powers we will give it through the ICANN bylaws" including the power to appoint and remove directors. Since this last power is defined by California statute as the "designator" right, we have been calling the "Empowered Community" the "Sole Designator," and vice versa.
If one wants to see the "powers" of the Empowered Community/Sole Designator Entity (ECSDE?) one just needs to look at the community powers in our proposal. Where the community comes together (more or less) as one, that's the ECSDE.
Of course, we should come up with a better name for this and use only one name rather than two, which has sowed confusion. One suggestion: Good Old Legal Empowerment Mechanism (GOLEM).
I feel this is all clear.
Greg
On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
Dear all, dear Kavouss
I don't feel any questions on my part are missing.
I am clear and I think from this whole thread, it is clear to everyone that there is one entity - the Empowered Community. It is established as an unincorporated association, and it has all the powers we will give it through the ICANN bylaws. One of those powers is appointment and removal of directors. It can back those powers up in Court if need be because it is recognised as a Designator under the law of California.
So: the powers are set out in the bylaws as per our report. The single entity is the Empowered Community. It is the Sole Designator.
I'm happy and don't need any legal input, and my reading is that we are all on the same page.
bests Jordan
On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:
Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote "/does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law/" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " *Empowred Community"/" Sole Designator " in regard *with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss
2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>:
Hello Kavous,
I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal).
I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained).
Regards
On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:
Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss
2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>:
Thanks a lot Rosemary that answers my question perfectly.
Regards
On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>> wrote:
Dear Sean and all:____
__ __
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws. ____
__ __
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.____
__ __
I hope that answers your question.____
__ __
Rosemary____
__ __
*From:*Seun Ojedeji [mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws____
__ __
Thank you Holly for the clarification. This has been my understanding as well.____
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.____
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).____
Regards____
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> wrote:____
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, ____
____
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.____
____
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.____
____
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date. ____
____
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept. ____
____
Kind regards, ____
Hlly and Rosemary____
____
____
*HOLLY**GREGORY* Partner
*Sidley Austin LLP** *+1 212 839 5853 <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>____
____
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws____
____
Recommendation 1 states:____
____
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”____
(Summary, Page 1, bullet point 3).____
____
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.____
____
Greg____
____
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:____
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.____
____
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.____
____
Even if people are confused about this, there is no problem in substance to resolve.____
____
____
Cheers____
Jordan ____
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:____
Hi Greg,____
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. ____
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.____
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.____
Regards____
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:____
Seun,____
____
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for _exercising_ a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.____
____
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.____
____
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.____
____
Greg____
____
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:____
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: > > I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal. > SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. ____
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.____
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.____
Hopefully this close this particular item.____
Regards____
on Recommendation 1. >> >> Just to provide a little more context in response to questions on the list. >> >> The role of the designator is to add or remove Board directors. This role is enforceable under California law. >> >> The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members. >> >> In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws. >> >> Regards, >> Bruce Tonkin >> >> _______________________________________________ >> 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 <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> > https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> >____
____
-- Jordan Carter Chief Executive, InternetNZ____
+64-21-442-649 <tel:%2B64-21-442-649> | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>____
Sent on the run, apologies for brevity____
____
____
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-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 <tel:%2B64-4-495-2118> (office) | +64-21-442-649 <tel:%2B64-21-442-649> (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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Dear Holly Dear Rosemary Thank you again very much for the analysis that you have done in regard with the description or definination of " Sole Desugnator" taking into account views expressed by Bruce, Grec and Jordan. Now we need a formal / official definition or descrition of " Sole Designator" and its exacrt Role Responsibility, and Ruthority, withourt USING ETC WHICH IS NOT A LEGAL TERM That terms shall be included in the Glossay and /or Bylaws .This is fundamental issue and must be clearly mentioned as an explicit term Regards Kavouss 2016-01-28 1:26 GMT+01:00 Nigel Roberts <nigel@channelisles.net>:
Like us all, it has feet of clay.
On 27/01/16 20:56, Greg Shatan wrote:
Jordan,
Succinct and accurate. Thank you.
I will just emphasize and reiterate one part of your message: The Empowered Community "has all the powers we will give it through the ICANN bylaws" including the power to appoint and remove directors. Since this last power is defined by California statute as the "designator" right, we have been calling the "Empowered Community" the "Sole Designator," and vice versa.
If one wants to see the "powers" of the Empowered Community/Sole Designator Entity (ECSDE?) one just needs to look at the community powers in our proposal. Where the community comes together (more or less) as one, that's the ECSDE.
Of course, we should come up with a better name for this and use only one name rather than two, which has sowed confusion. One suggestion: Good Old Legal Empowerment Mechanism (GOLEM).
I feel this is all clear.
Greg
On Wed, Jan 27, 2016 at 3:31 PM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
Dear all, dear Kavouss
I don't feel any questions on my part are missing.
I am clear and I think from this whole thread, it is clear to everyone that there is one entity - the Empowered Community. It is established as an unincorporated association, and it has all the powers we will give it through the ICANN bylaws. One of those powers is appointment and removal of directors. It can back those powers up in Court if need be because it is recognised as a Designator under the law of California.
So: the powers are set out in the bylaws as per our report. The single entity is the Empowered Community. It is the Sole Designator.
I'm happy and don't need any legal input, and my reading is that we are all on the same page.
bests Jordan
On 28 January 2016 at 03:44, Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:
Dear Holly No ,you have not said any thingabout the claim of Some people providing all and every power for the " Empowred Community"/" Sole Designator " versus what Bruce said and versus what Jordan said ( with which I fuklly agreed ) . You said the following Quote "/does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law/" Unquote The wexpression / part of what you have said " which extend well beyond the rights given to designators by California corporate law" This portion is totally vague and does not any thing as requested Pls kindly and specifically , if you wish and if you respect me what is the role, responsibilities and authorities of the " *Empowred Community"/" Sole Designator " in regard *with what contained in the Article of incorporation, and proposed Bylaws. As you have noted the views of ICANN is ,for instance, right of ispection is reserved for the COMMUNITY AND NOT the Sole designtor . See read ICANN Comments ( Bruce as well ), Grec's Comments and Jordan Comments Regards Kavouss
2016-01-27 15:20 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>:
Hello Kavous,
I don't understand what other study is required in this. The lawyers have provided the clarification required(indicating theroles and the relevant vehicles to exercise them) and if the 3 you mentioned have a different opinion then they would have indicated it (I note that Greg already acknowledged the response from legal).
I don't think there is need(neither is it economical) to further utilise legal hours on this unless you specifically indicate what area is not clear to you as a person (which is yet to be explained).
Regards
On 27 Jan 2016 14:58, "Kavouss Arasteh" <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:
Dear Holly Dear Rosemary Thank you very much for definition However, the problem that was raised was not the definition but the scope of responsibility and mandate There were three options View one; From Bruce View Two FromGrec View three;From Jordan Please kindly carefully study these three and comment in favour of one or other or a combination of those three. The three designator came first from you in APRIL 2015 tHE eMPOWERED cOMMUNITY CASE FROM THE ccwg discussion. I agree that the latter is more appropriate but the problem raised was different as described above. Either you wish to reply or not but please kindly reply to the question raised Regards Kavouss
2016-01-27 6:53 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>:
Thanks a lot Rosemary that answers my question perfectly.
Regards
On 27 Jan 2016 6:47 a.m., "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>> wrote:
Dear Sean and all:____
__ __
You are correct. The power to designate (and correspondingly to remove) directors is one of the powers that will be given to the Empowered Community in the Bylaws. You could also say that acting as ICANN’s “sole designator” is one of the Empowered Community’s roles in the proposed accountability structure, along with other roles and powers that will also be given to the Empowered Community in the Bylaws. ____
__ __
The Empowered Community could be given the other powers (except the removal right) without giving it the power to designate directors – those other powers can legally be given to any third party, not just one that holds designator powers.____
__ __
I hope that answers your question.____
__ __
Rosemary____
__ __
*From:*Seun Ojedeji [mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>] *Sent:* Tuesday, January 26, 2016 9:41 PM *To:* Holly Gregory *Cc:* Thomas Rickert; ACCT-Staff; ICANN-Adler; Sidley ICANN CCWG; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org
; León Felipe Sánchez Ambía; Mathieu Weill *Subject:* Re: [CCWG-ACCT] Nomenclature re "Empowered Community": ICANN Board comments - Recommendation 3 - Fundamental Bylaws____
__ __
Thank you Holly for the clarification. This has been my understanding as well.____
One other thing that I would appreciate if clarified is to know whether the "empowered community" is able to carry out the other roles (like approval of bylaws et all) because it is the designator or just because it is the unincorporated entity setup as the third party to perform those roles in the bylaw.____
In other words the unincorporated entity doubles as both the designator (with the power as described under California law) and the "enhanced community" (with the other powers as described in the bylaw).____
Regards____
On 26 Jan 2016 9:38 p.m., "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> wrote:____
Dear CCWG-ACCT Co-Chairs, Members, Participants and Staff, ____
____
We have been monitoring the recent discussion on the CCWG-ACCT listserv about the use of the terms “community”, “Empowered Community”, and “Sole Designator” in the draft Proposal, and we wish to share our understanding of these terms.____
____
We agree that the word “community” as used in the draft Proposal encompasses not only ICANN’s Board and all of its SOs and ACs and their individual members, but also those who participate in ICANN meetings and processes, as explained by Bruce Tonkin in his January 24 email.____
____
“Empowered Community” is the name to be given to an unincorporated association to be created in ICANN’s Bylaws. This new entity has also been described as the “Sole Designator,” but that term -- which arose from the new entity’s function as ICANN’s sole designator -- does not adequately describe the other important roles for the new entity, which extend well beyond the rights given to designators by California corporate law. Therefore, the “Empowered Community” is a more appropriate reference, and it has been used interchangeably with “Sole Designator” to date. ____
____
As a global final edit, we recommend using “Empowered Community” consistently to refer to the new legal entity, after the first discussion of the sole designator concept. ____
____
Kind regards, ____
Hlly and Rosemary____
____
____
*HOLLY**GREGORY* Partner
*Sidley Austin LLP** *+1 212 839 5853 <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>____
____
*From:* accountability-cross-community-bounces@icann.org <mailto: accountability-cross-community-bounces@icann.org> [mailto: accountability-cross-community-bounces@icann.org <mailto: accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, January 25, 2016 11:42 PM *To:* Jordan Carter *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws____
____
Recommendation 1 states:____
____
. The entity created using the Sole Designator model will be referred to as the “Empowered Community.”____
(Summary, Page 1, bullet point 3).____
____
In other words the Sole Designator is the Empowered Community, and vice versa. You are introducing a dichotomy where none exists.____
____
Greg____
____
On Mon, Jan 25, 2016 at 5:39 PM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:____
This isn't quite right - as far as I am aware the entity that is the Sole Designator will have the right to appoint and remove directors, and be the 'third party' that can approve changes to Icann fundamental bylaws or block changes to Icann standard bylaws.____
____
I'm not sure this is a revelation of any sort, or causes any confusion at all. These powers along with all the others will be set out in the bylaws, as has been the case all along. The only distinguishing feature is that the legislation in California gives designators the director rights, and gives the right of the articles / bylaws to include third party approvals.____
____
Even if people are confused about this, there is no problem in substance to resolve.____
____
____
Cheers____
Jordan ____
On Monday, 25 January 2016, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:____
Hi Greg,____
I don't think we are in disagreement in the substance of all these. It's just the naming we are in disagreement upon and I am still of the opinion that a designator only has the statutory power to remove/add board members. ____
All other powers/process we have managed to put in the bylaw may need to be called/named something else as they are not made possible because of the designator but rather because of the fact that they are now written in the bylaw and the board normally would want to respect such a document.____
In anycase, unless there is any other change you think has been proposed other than giving inspection rights to the community (which you and I are in agreement) that affects the current proposal, I don't see any reason to still consider this open as such.____
Regards____
On 24 Jan 2016 18:02, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:____
Seun,____
____
You misunderstand me. The Designator does more than "enforce" powers. Under our proposal, the designator is also the vehicle for _exercising_ a number of the powers (e.g., approving/rejecting bylaws). The exercise of the new powers by the designator will be a much more common occurrence than the enforcement of those powers by removing directors. I anticipate the latter will rarely (if ever) occur, though the fact it can occur is part of our accountability framework. There are other reasons for the Board to comply with the community's exercise of its powers, aside from sheer terror at being removed. For one thing, these powers are enshrined in the bylaws, and the Board (like any Board) will not take the prospect of violating our Bylaws lightly.____
____
We have had a tendency to overemphasize the enforcement end of things, and I think this is one more action in that vein. Let's try to avoid that. Just like our proposal is about far more than "enforcement," so is the Single Designator.____
____
So, no, your statement did not "close this particular item." Rather, it demonstrates exactly why this item is not really closed.____
____
Greg____
____
On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:____
On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: > > I agree with the result the Board came to (at least in part), but not the reasoning. Each SO or AC should have the right to inspect. However, the role of the Designator is not merely to "add or remove Board members." The Designator plays a critical role in the exercise of several of the powers, in addition to its role in enforcing those powers via director removal. > SO: I guess Bruce was rightly mentioning the powers of the designator. I believe we we will only be getting those powers enforced as a result of the "add/remove" power of the designator. ____
So in summary we don't get enforcement of the various powers because it's a role of the designator but on the basis that the designator may use its only statutory power, which is to add/remove board members.____
I generally agree with the result and would have even preferred that a threshold be required for inspection. However, on the basis that each SO/AC may need access to certain information to make informed/independent decisions, it makes sense to allow such right to each SO/AC.____
Hopefully this close this particular item.____
Regards____
on Recommendation 1. >> >> Just to provide a little more context in response to questions on the list. >> >> The role of the designator is to add or remove Board directors. This role is enforceable under California law. >> >> The inspection right is a right for the ACs and SOs. An AC or SO can exercise this right independently of the legal entity that will be the sole designator. If ICANN doesn't respond to an appropriate request from an SO or AC, it would be in breach of its bylaws. The community can then use the IRP to get a binding decision. In the unlikely event that the Board does not comply with the outcome of the IRP decision, then the designator has the power to remove Board members. >> >> In the bylaws we want to make sure that we don't confuse the role of the designator (add or remove Board members) with the various roles of the SO and ACs in the bylaws. The bylaws are primarily enforced by the IRP, and then the designator (via removal of Board directors) if the IRP is not complied with, and then the courts if the decision of the designator is not complied with. This is a clear escalation path that applies to all bylaws. >> >> Regards, >> Bruce Tonkin >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>
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____
-- Jordan Carter Chief Executive, InternetNZ____
+64-21-442-649 <tel:%2B64-21-442-649> | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>____
Sent on the run, apologies for brevity____
____
____
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On Sun, Jan 24, 2016 at 10:14:41AM -0500, Greg Shatan wrote:
I agree with the result the Board came to (at least in part), but not the reasoning.
[…]
exercise its powers through the Designator. As a practical matter, this can be solved by having any of the SOs or ACs exercise the inspection right, so we're covered that way.)
Since the bylaws don't contain the reasoning for why a particular arrangement happens, but instead just contains the arrangement, what difference does it make the reasons people have to believe the conclusion we seem to be reaching? I like the emphasis on the practical matter: let's find a way to make the outcome right. It seems to me that making inspection a community power rather than one of the designator rather improves the value of inspection to the community, so we should embrace that conclusion (regardess of why people think it's the right one) and move on. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Actually in practice, "one of the designator" does not apply because we only have one(sole) designator as per the CCWG proposal. So what you are saying would logical been logical if applied to the designator which in context would be the community. However I think the final proposal applies the inspection right to each decisional SO/AC which implies there is really no community thing (threshold) for inspection(para35 Annex 1) as it can be exercised by each individual SO/AC but within the scope described in para32 Overall I guess the ship has sailed on this one so we should not dwell further on it. Cheers! Sent from my LG G4 Kindly excuse brevity and typos On 16 Mar 2016 03:27, "Andrew Sullivan" <ajs@anvilwalrusden.com> wrote:
On Sun, Jan 24, 2016 at 10:14:41AM -0500, Greg Shatan wrote:
I agree with the result the Board came to (at least in part), but not the reasoning.
[…]
exercise its powers through the Designator. As a practical matter, this can be solved by having any of the SOs or ACs exercise the inspection right, so we're covered that way.)
Since the bylaws don't contain the reasoning for why a particular arrangement happens, but instead just contains the arrangement, what difference does it make the reasons people have to believe the conclusion we seem to be reaching? I like the emphasis on the practical matter: let's find a way to make the outcome right.
It seems to me that making inspection a community power rather than one of the designator rather improves the value of inspection to the community, so we should embrace that conclusion (regardess of why people think it's the right one) and move on.
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
So, so, in practice... el -- Sent from Dr Lisse's iPhone 5c
On 16 Mar 2016, at 06:51, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Actually in practice, "one of the designator" does not apply because we only have one(sole) designator as per the CCWG proposal. So what you are saying would logical been logical if applied to the designator which in context would be the community.
However I think the final proposal applies the inspection right to each decisional SO/AC which implies there is really no community thing (threshold) for inspection(para35 Annex 1) as it can be exercised by each individual SO/AC but within the scope described in para32
Overall I guess the ship has sailed on this one so we should not dwell further on it.
Cheers!
Sent from my LG G4 Kindly excuse brevity and typos
On 16 Mar 2016 03:27, "Andrew Sullivan" <ajs@anvilwalrusden.com> wrote: On Sun, Jan 24, 2016 at 10:14:41AM -0500, Greg Shatan wrote:
I agree with the result the Board came to (at least in part), but not the reasoning.
[…]
exercise its powers through the Designator. As a practical matter, this can be solved by having any of the SOs or ACs exercise the inspection right, so we're covered that way.)
Since the bylaws don't contain the reasoning for why a particular arrangement happens, but instead just contains the arrangement, what difference does it make the reasons people have to believe the conclusion we seem to be reaching? I like the emphasis on the practical matter: let's find a way to make the outcome right.
It seems to me that making inspection a community power rather than one of the designator rather improves the value of inspection to the community, so we should embrace that conclusion (regardess of why people think it's the right one) and move on.
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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you'll poll 0upPPUPp
Dear Mathieu, Dear Thomas. Dear Leon, Dear All, This is a very sensitive and puerly legal issue. Before we start a new round of unlimited exchange of views, I suggest that, with the agreement of CO-CHAIRS,this comments which has been raised previously in saying that *"Ispection right should be noted as a right of the community, and not of the Sole Designator." be certified as a question to be immediately examined and clarified by the Lawyers in a formal legal view: * *Regards* *Kavouss * 2016-01-23 13:58 GMT+01:00 Rudolph Daniel <rudi.daniel@gmail.com>:
you'll poll 0upPPUPp
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participants (14)
-
Andrew Sullivan -
Avri Doria -
Bruce Tonkin -
Chris Disspain -
Dr Eberhard W Lisse -
Dr Eberhard W Lisse -
Greg Shatan -
Gregory, Holly -
Jordan Carter -
Kavouss Arasteh -
Nigel Roberts -
Rosemary E. Fei -
Rudolph Daniel -
Seun Ojedeji