Fwd: [Acct-Legal] Proposed agenda for tomorrow's call
Dear all, I am forwarding the answers provided by counsel to the questions raised by Chris Disspain. Interesting situations. Best regards León Enviado desde mi iPhone Inicio del mensaje reenviado:
De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> Fecha: 21 de abril de 2015, 10:59:52 PM CDT Para: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> Cc: ACCT-Staff <acct-staff@icann.org> Asunto: Re: [Acct-Legal] Proposed agenda for tomorrow's call Responder a: ccwg-accountability5@icann.org
Thank you Leon for sharing the agenda for the Legal Sub-Team call tomorrow. Below you will find responses to the four questions posed by Chris Disspain. For convenience, we have interlineated our responses following each question, and although the email comes from Sidley we have reviewed with Adler & Colvin as well.
=====================================================================
Under the current structure of ICANN and its SOs and ACs
1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?
Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However:
As to the budget, in a membership model, a bylaw could be drafted granting SOs and ACs the ability to veto the budget. In a designator model, this ability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). As to a bylaw change, under both a membership model and a designator model, a bylaw could be drafted granting SOs and ACs the right to veto bylaw changes. This is addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
First, for an SO or an AC to be able to enforce any right vis-a-vis ICANN, it would need to be organized as a legal person (such as an unincorporated association). Thus, under the current structure of ICANN and its SOs and ACs, the SOs or ACs could not enforce the veto right as they are not currently legal persons. However, in a membership model, a bylaw granting the SOs and ACs a right to veto the budget would generally be enforceable. In a designator model, this enforceability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). A right provided by a bylaw to the SOs and ACs to veto a bylaw change would (subject to the legal personhood requirement stated above) generally be enforceable. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?
Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However:
In a membership model, binding arbitration could be implemented in the bylaws or by agreements with the members, and the Board would generally be bound by the finding, provided the right to veto was reserved to the members in the articles or bylaws. In a designator model, binding arbitration could be implemented for bylaw changes where approval was reserved to the designators, but the enforceability of a right to veto the budget would be questionable and the arbitration finding would generally be considered advisory rather than binding. These issues are addressed in Annex A to the Sidley Austin and Adler & Colvin April 20, 2015 memorandum (Link) and in the “Legal Analysis and Viability” section of the Independent Review Panel template included in Annex B thereto. 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?
Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However, under either a member or a designator model, a procedure could be inserted into the bylaws to provide for a no-confidence vote. The members or designators would then enter into a contract whereby the members or designators agree to remove their respective directors upon the occurrence of the no-confidence vote. Another mechanism could be a “springing resignation” signed by each director on assuming office that automatically takes effect upon a no-confidence vote. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” section of template WP1-7A attached thereto, and (2) Section 1 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link).
Cheers, Josh JOSHUA HOFHEIMER Partner Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com www.sidley.com SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam Sent: Tuesday, April 21, 2015 8:35 PM To: ccwg-accountability5@icann.org Cc: ACCT-Staff Subject: [Acct-Legal] Proposed agenda for tomorrow's call
Dear team,
Attached you will find the proposed agenda for our tomorrow’s call. As usual, this is just a proposal that welcomes any addition or modification you consider pertinent.
Attached also the documents for discussion. As for the questions raised by Chris Disspain, I paste them here:
Under the current structure of ICANN and its SOs and ACs
1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?
2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?
4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?
Staff, I kindly ask you to please have the documents ready for display in the AC room.
Looking forward to our call tomorrow.
Best regards,
Best regards,
León
**************************************************************************************************** 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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Leon, I wish to attend your meeting May you include me my dial up would be 0041 79 325 65 34 . ADOBE CONNECTION DOCS. I have ICG call between 13, 15, UTC Rergards Kavouss 2015-04-22 8:07 GMT+02:00 León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>:
Dear all,
I am forwarding the answers provided by counsel to the questions raised by Chris Disspain.
Interesting situations.
Best regards
León
Enviado desde mi iPhone
Inicio del mensaje reenviado:
*De:* List for the work of CCWG-Accountability Legal SubTeam < ccwg-accountability5@icann.org> *Fecha:* 21 de abril de 2015, 10:59:52 PM CDT *Para:* "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> *Cc:* ACCT-Staff <acct-staff@icann.org> *Asunto:* *Re: [Acct-Legal] Proposed agenda for tomorrow's call* *Responder a:* ccwg-accountability5@icann.org
Thank you Leon for sharing the agenda for the Legal Sub-Team call tomorrow. Below you will find responses to the four questions posed by Chris Disspain. For convenience, we have interlineated our responses following each question, and although the email comes from Sidley we have reviewed with Adler & Colvin as well.
=====================================================================
Under the current structure of ICANN and its SOs and ACs
1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?
*Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However:*
- *As to the budget, in a membership model, a bylaw could be drafted granting SOs and ACs the ability to veto the budget. In a designator model, this ability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).* - *As to a bylaw change, under both a membership model and a designator model, a bylaw could be drafted granting SOs and ACs the right to veto bylaw changes. This is addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
- *First, for an SO or an AC to be able to enforce any right vis-a-vis ICANN, it would need to be organized as a legal person (such as an unincorporated association). Thus, under the current structure of ICANN and its SOs and ACs, the SOs or ACs could not enforce the veto right as they are not currently legal persons. However, in a membership model, a bylaw granting the SOs and ACs a right to veto the budget would generally be enforceable. In a designator model, this enforceability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).* - *A right provided by a bylaw to the SOs and ACs to veto a bylaw change would (subject to the legal personhood requirement stated above) generally be enforceable. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?
*Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However:*
- *In a membership model, binding arbitration could be implemented in the bylaws or by agreements with the members, and the Board would generally be bound by the finding, provided the right to veto was reserved to the members in the articles or bylaws. * - *In a designator model, binding arbitration could be implemented for bylaw changes where approval was reserved to the designators, but the enforceability of a right to veto the budget would be questionable and the arbitration finding would generally be considered advisory rather than binding. These issues are addressed in Annex A to the Sidley Austin and Adler & Colvin April 20, 2015 memorandum (Link <https://community.icann.org/download/attachments/52890082/21April%20Legal%20...>) and in the “Legal Analysis and Viability” section of the Independent Review Panel template included in Annex B thereto.*
4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?
*Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However, under either a member or a designator model, a procedure could be inserted into the bylaws to provide for a no-confidence vote. The members or designators would then enter into a contract whereby the members or designators agree to remove their respective directors upon the occurrence of the no-confidence vote. Another mechanism could be a “springing resignation” signed by each director on assuming office that automatically takes effect upon a no-confidence vote. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” section of template WP1-7A attached thereto, and (2) Section 1 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
Cheers,
Josh
*JOSHUA* *HOFHEIMER Partner*
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com www.sidley.com
[image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
*From:* ccwg-accountability5-bounces@icann.org [ mailto:ccwg-accountability5-bounces@icann.org <ccwg-accountability5-bounces@icann.org>] *On Behalf Of *List for the work of CCWG-Accountability Legal SubTeam *Sent:* Tuesday, April 21, 2015 8:35 PM *To:* ccwg-accountability5@icann.org *Cc:* ACCT-Staff *Subject:* [Acct-Legal] Proposed agenda for tomorrow's call
Dear team,
Attached you will find the proposed agenda for our tomorrow’s call. As usual, this is just a proposal that welcomes any addition or modification you consider pertinent.
Attached also the documents for discussion. As for the questions raised by Chris Disspain, I paste them here:
Under the current structure of ICANN and its SOs and ACs
1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?
2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?
4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?
Staff, I kindly ask you to please have the documents ready for display in the AC room.
Looking forward to our call tomorrow.
Best regards,
Best regards,
León
**************************************************************************************************** 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.
****************************************************************************************************
_______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability5
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 22/04/2015 07:07, León Felipe Sánchez Ambía wrote:
Dear all,
I am forwarding the answers provided by counsel to the questions raised by Chris Disspain. [...]
2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
* *First, for an SO or an AC to be able to enforce any right vis-a-vis ICANN, it would need to be organized as a legal person (such as an unincorporated association).
A quick check for certainty please: did Counsel advise that unincorporated associations have legal personality under California law? If this was noted down orally, it would have been easy to mishear "such as an incorporated association", and I wanted to check against that possibility. Unincorporated associations do not have legal personality in English law. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Malcolm: Yes, counsel has advised on several occasions that unincorporated associations are legal persons under California law. I would note that these are written questions provided directly from counsel (in writing), so there is no "mishearing" possible. Not sure how you could get the idea it was otherwise, given that the advice was signed by Joshua Hofheimer of Sidley. Greg On Wed, Apr 22, 2015 at 11:30 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 22/04/2015 07:07, León Felipe Sánchez Ambía wrote:
Dear all,
I am forwarding the answers provided by counsel to the questions raised by Chris Disspain. [...]
2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
* *First, for an SO or an AC to be able to enforce any right vis-a-vis ICANN, it would need to be organized as a legal person (such as an unincorporated association).
A quick check for certainty please: did Counsel advise that unincorporated associations have legal personality under California law?
If this was noted down orally, it would have been easy to mishear "such as an incorporated association", and I wanted to check against that possibility.
Unincorporated associations do not have legal personality in English law.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 22 Apr 2015, at 18:00, Greg Shatan <gregshatanipc@gmail.com> wrote:
Malcolm:
Yes, counsel has advised on several occasions that unincorporated associations are legal persons under California law.
I would note that these are written questions provided directly from counsel (in writing), so there is no "mishearing" possible. Not sure how you could get the idea it was otherwise, given that the advice was signed by Joshua Hofheimer of Sidley.
Thank you. Malcolm.
Thanks León. Those are really helpful responses. Please pass on my thanks to Josh. Cheers, Chris On 22 Apr 2015, at 16:07 , León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> wrote:
Dear all,
I am forwarding the answers provided by counsel to the questions raised by Chris Disspain.
Interesting situations.
Best regards
León
Enviado desde mi iPhone
Inicio del mensaje reenviado:
De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> Fecha: 21 de abril de 2015, 10:59:52 PM CDT Para: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> Cc: ACCT-Staff <acct-staff@icann.org> Asunto: Re: [Acct-Legal] Proposed agenda for tomorrow's call Responder a: ccwg-accountability5@icann.org
Thank you Leon for sharing the agenda for the Legal Sub-Team call tomorrow. Below you will find responses to the four questions posed by Chris Disspain. For convenience, we have interlineated our responses following each question, and although the email comes from Sidley we have reviewed with Adler & Colvin as well.
=====================================================================
Under the current structure of ICANN and its SOs and ACs
1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?
Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However:
As to the budget, in a membership model, a bylaw could be drafted granting SOs and ACs the ability to veto the budget. In a designator model, this ability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). As to a bylaw change, under both a membership model and a designator model, a bylaw could be drafted granting SOs and ACs the right to veto bylaw changes. This is addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
First, for an SO or an AC to be able to enforce any right vis-a-vis ICANN, it would need to be organized as a legal person (such as an unincorporated association). Thus, under the current structure of ICANN and its SOs and ACs, the SOs or ACs could not enforce the veto right as they are not currently legal persons. However, in a membership model, a bylaw granting the SOs and ACs a right to veto the budget would generally be enforceable. In a designator model, this enforceability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). A right provided by a bylaw to the SOs and ACs to veto a bylaw change would (subject to the legal personhood requirement stated above) generally be enforceable. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?
Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However:
In a membership model, binding arbitration could be implemented in the bylaws or by agreements with the members, and the Board would generally be bound by the finding, provided the right to veto was reserved to the members in the articles or bylaws. In a designator model, binding arbitration could be implemented for bylaw changes where approval was reserved to the designators, but the enforceability of a right to veto the budget would be questionable and the arbitration finding would generally be considered advisory rather than binding. These issues are addressed in Annex A to the Sidley Austin and Adler & Colvin April 20, 2015 memorandum (Link) and in the “Legal Analysis and Viability” section of the Independent Review Panel template included in Annex B thereto. 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?
Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However, under either a member or a designator model, a procedure could be inserted into the bylaws to provide for a no-confidence vote. The members or designators would then enter into a contract whereby the members or designators agree to remove their respective directors upon the occurrence of the no-confidence vote. Another mechanism could be a “springing resignation” signed by each director on assuming office that automatically takes effect upon a no-confidence vote. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” section of template WP1-7A attached thereto, and (2) Section 1 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link).
Cheers, Josh JOSHUA HOFHEIMER Partner Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com www.sidley.com SIDLEY AUSTIN LLP
From: ccwg-accountability5-bounces@icann.org [mailto:ccwg-accountability5-bounces@icann.org]On Behalf Of List for the work of CCWG-Accountability Legal SubTeam Sent: Tuesday, April 21, 2015 8:35 PM To: ccwg-accountability5@icann.org Cc: ACCT-Staff Subject: [Acct-Legal] Proposed agenda for tomorrow's call
Dear team,
Attached you will find the proposed agenda for our tomorrow’s call. As usual, this is just a proposal that welcomes any addition or modification you consider pertinent.
Attached also the documents for discussion. As for the questions raised by Chris Disspain, I paste them here:
Under the current structure of ICANN and its SOs and ACs
1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?
2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?
4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?
Staff, I kindly ask you to please have the documents ready for display in the AC room.
Looking forward to our call tomorrow.
Best regards,
Best regards,
León
**************************************************************************************************** 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.
****************************************************************************************************
_______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability5
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Yes, very clear and helpful responses to Chris's questions indeed... Thanks On 23/04/2015 4:26 am, "Chris Disspain" <ceo@auda.org.au> wrote:
Thanks León. Those are really helpful responses. Please pass on my thanks to Josh.
Cheers,
Chris
On 22 Apr 2015, at 16:07 , León Felipe Sánchez Ambía < leonfelipe@sanchez.mx> wrote:
Dear all,
I am forwarding the answers provided by counsel to the questions raised by Chris Disspain.
Interesting situations.
Best regards
León
Enviado desde mi iPhone
Inicio del mensaje reenviado:
*De:* List for the work of CCWG-Accountability Legal SubTeam < ccwg-accountability5@icann.org> *Fecha:* 21 de abril de 2015, 10:59:52 PM CDT *Para:* "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org> *Cc:* ACCT-Staff <acct-staff@icann.org> *Asunto:* *Re: [Acct-Legal] Proposed agenda for tomorrow's call* *Responder a:* ccwg-accountability5@icann.org
Thank you Leon for sharing the agenda for the Legal Sub-Team call tomorrow. Below you will find responses to the four questions posed by Chris Disspain. For convenience, we have interlineated our responses following each question, and although the email comes from Sidley we have reviewed with Adler & Colvin as well.
=====================================================================
Under the current structure of ICANN and its SOs and ACs
1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?
*Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However:*
- *As to the budget, in a membership model, a bylaw could be drafted granting SOs and ACs the ability to veto the budget. In a designator model, this ability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).* - *As to a bylaw change, under both a membership model and a designator model, a bylaw could be drafted granting SOs and ACs the right to veto bylaw changes. This is addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
- *First, for an SO or an AC to be able to enforce any right vis-a-vis ICANN, it would need to be organized as a legal person (such as an unincorporated association). Thus, under the current structure of ICANN and its SOs and ACs, the SOs or ACs could not enforce the veto right as they are not currently legal persons. However, in a membership model, a bylaw granting the SOs and ACs a right to veto the budget would generally be enforceable. In a designator model, this enforceability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).* - *A right provided by a bylaw to the SOs and ACs to veto a bylaw change would (subject to the legal personhood requirement stated above) generally be enforceable. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?
*Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However:*
- *In a membership model, binding arbitration could be implemented in the bylaws or by agreements with the members, and the Board would generally be bound by the finding, provided the right to veto was reserved to the members in the articles or bylaws. * - *In a designator model, binding arbitration could be implemented for bylaw changes where approval was reserved to the designators, but the enforceability of a right to veto the budget would be questionable and the arbitration finding would generally be considered advisory rather than binding. These issues are addressed in Annex A to the Sidley Austin and Adler & Colvin April 20, 2015 memorandum (Link <https://community.icann.org/download/attachments/52890082/21April%20Legal%20...>) and in the “Legal Analysis and Viability” section of the Independent Review Panel template included in Annex B thereto.*
4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable? *Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However, under either a member or a designator model, a procedure could be inserted into the bylaws to provide for a no-confidence vote. The members or designators would then enter into a contract whereby the members or designators agree to remove their respective directors upon the occurrence of the no-confidence vote. Another mechanism could be a “springing resignation” signed by each director on assuming office that automatically takes effect upon a no-confidence vote. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link <https://community.icann.org/download/attachments/52890082/Combined%20CCWG%20...>) and the “Legal Analysis and Viability” section of template WP1-7A attached thereto, and (2) Section 1 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link <https://community.icann.org/download/attachments/52890082/Legal%20Assessment_%20%20Governance%20Chart.pdf?version=2&modificationDate=1429519899000&api=v2>).*
Cheers, Josh *JOSHUA* *HOFHEIMERPartner* Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com www.sidley.com [image: http://www.sidley.com/files/upload/signatures/SA-autosig.png] <http://www.sidley.com/> *SIDLEY AUSTIN LLP*
*From:* ccwg-accountability5-bounces@icann.org [ mailto:ccwg-accountability5-bounces@icann.org <ccwg-accountability5-bounces@icann.org>]*On Behalf Of *List for the work of CCWG-Accountability Legal SubTeam *Sent:* Tuesday, April 21, 2015 8:35 PM *To:* ccwg-accountability5@icann.org *Cc:* ACCT-Staff *Subject:* [Acct-Legal] Proposed agenda for tomorrow's call
Dear team,
Attached you will find the proposed agenda for our tomorrow’s call. As usual, this is just a proposal that welcomes any addition or modification you consider pertinent.
Attached also the documents for discussion. As for the questions raised by Chris Disspain, I paste them here:
Under the current structure of ICANN and its SOs and ACs
1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws?
2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto?
3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding?
4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable?
Staff, I kindly ask you to please have the documents ready for display in the AC room.
Looking forward to our call tomorrow.
Best regards,
Best regards,
León
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participants (6)
-
Cheryl Langdon-Orr -
Chris Disspain -
Greg Shatan -
Kavouss Arasteh -
León Felipe Sánchez Ambía -
Malcolm Hutty