[CCWG-Accountability] Regarding role of Board directors
Hello Steve,
ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin
Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore. Best, Robin On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
Hello Steve,
ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the past year.
I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board.
The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community".
For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee.
In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public.
In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent.
After the ATRT1 review, a set of governance guidelines were established to make this clearer:
https://www.icann.org/resources/pages/guidelines-2012-05-15-en
From the section on the role of directors:
"The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest"
"It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals."
"Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation."
The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the community, see ICANN’s own Management Operating Principles (2008 link<https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles...>, p. 5): "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.” So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react? From: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-Accountability] Regarding role of Board directors Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore. Best, Robin On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote: Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation: Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies. I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. 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
I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert. But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole". Alan At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to âICANNâ as the corporation or the community, see ICANNâs own Management Operating Principles (2008 <https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf>link, p. 5):
"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.â
So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit how do you bellieve a board member is obliged to react?
From: Robin Gross <<mailto:robin@ipjustice.org>robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin <<mailto:Bruce.Tonkin@melbourneit.com.au>Bruce.Tonkin@melbourneit.com.au> Cc: "<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org" <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore.
Best, Robin
On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: <https://www.icann.org/resources/pages/guidelines-2012-05-15-en>https://www.icann.org/resources/pages/guidelines-2012-05-15-en From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react? On the above, can we seek a legal opinion? Its important to address this scenario. This can happen at anytime in the lifetime of ICANN. -Akinbo. On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert.
But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole".
Alan
At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the *community*, see ICANN’s own Management Operating Principles (2008 link <https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles...>, p. 5):
"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.â€
So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react?
From: Robin Gross <robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore.
Best, Robin
On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- *Evang. Akinbo A. A. Cornerstone, Nigeria.* +2348064464545, +2348089118151 | 2BAC511D. www.akinbo.ng *Member, Executive Board of Directors*, Nigeria Internet Registration Association (NiRA) www.nira.org.ng | akinbo@nira.org.ng <akinbo@yips.org.ng> @niraworks *Acting Chief Operating Officer,* DNS Africa Magazine www.dnsafrica.org | akinbo@dnsafrica.org @dnsafrica *National Convener,* Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng <http://www.nira.org.ng/> *President,* Young Internet Professionals (YiPS) www.yips.gnbo.com.ng <http://wwwyips.org.ng/> | akinbo@yips.org.ng *The RedHub.* 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/ *National Focal Point ( Nigeria ) 2009-2011.* Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org www.takingitglobal.com www.iaids.org About me: http://profiles.tigweb.org/pscornerstone
Dear Bruce I have noted that you tried very hard to pick up provisions from ICANN Bylaws and your practical experience and to reply to Robin ,Alan ,Akinbo and Other still the basic questions currently produced the legal GAP continue to exist " trying to do public governance via a private corporation - the two concepts weren't "built" for the other", and " when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit" There are conflicting conditions under which ICANN is working. Perhaps the corporation enviroment does not respond to the global community consensus demand I think this should be further explore and resolved rather than you try to make a cut and paste between the two which does have legal inconsistencies Kavouss 2015-01-11 9:30 GMT+01:00 Adebunmi AKINBO <akinbo.adebunmi@gmail.com>:
+1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react?
On the above, can we seek a legal opinion? Its important to address this scenario.
This can happen at anytime in the lifetime of ICANN. -Akinbo.
On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert.
But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole".
Alan
At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the *community*, see ICANN’s own Management Operating Principles (2008 link <https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles...>, p. 5):
"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.â€
So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react?
From: Robin Gross <robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore.
Best, Robin
On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- *Evang. Akinbo A. A. Cornerstone, Nigeria.* +2348064464545, +2348089118151 | 2BAC511D. www.akinbo.ng
*Member, Executive Board of Directors*, Nigeria Internet Registration Association (NiRA) www.nira.org.ng | akinbo@nira.org.ng <akinbo@yips.org.ng> @niraworks
*Acting Chief Operating Officer,* DNS Africa Magazine www.dnsafrica.org | akinbo@dnsafrica.org @dnsafrica
*National Convener,* Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng <http://www.nira.org.ng/>
*President,* Young Internet Professionals (YiPS) www.yips.gnbo.com.ng <http://wwwyips.org.ng/> | akinbo@yips.org.ng
*The RedHub.* 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/
*National Focal Point ( Nigeria ) 2009-2011.* Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org www.takingitglobal.com www.iaids.org About me: http://profiles.tigweb.org/pscornerstone
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 2015-01-11 08:30, Adebunmi AKINBO wrote:
+1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react?
I would say that it is the responsibility of the Board to find ways to reconcile the community consensus with their legal obligations. Normally this is done through a combination of engagement with the community (so as to relieve unrealistic or unachievable expectations) and creative approaches to implementation (so that the objectives of the community are met in a manner compatible other obligations, which may not be the implementation originally envisaged). These twin duties are, in my view, *both* fundamental. The latter should not be allowed to become an excuse for the Board to go its own way, in defiance of the community. Ultimately, if a Board member believes they are incapable of satisfying all their duties, then their responsibility is to resign their office. Indeed, the equivalent is true for ordinary commercial companies too; directors have the same responsibilities to the law and the company, on the one hand, and the company's owners on the other. So this is not a radical suggestion. The radical idea would be to propose that directors are entitled, in the final analysis, to advance their own preferences in defiance of the community they are appointed to serve. Kind Regards, Malcolm.
On the above, can we seek a legal opinion? Its important to address this scenario.
This can happen at anytime in the lifetime of ICANN. -Akinbo.
On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert.
But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole".
Alan
At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the community, see ICANN’s own Management Operating Principles (2008 link [1], p. 5):
"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.â€
So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react?
From: Robin Gross <robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore.
Best, Robin
On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en [2] From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
[3]
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
[3]
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community [3]
--
EVANG. AKINBO A. A. CORNERSTONE, NIGERIA. +2348064464545, +2348089118151 | 2BAC511D.
www.akinbo.ng [4]
MEMBER, EXECUTIVE BOARD OF DIRECTORS, Nigeria Internet Registration Association (NiRA) www.nira.org.ng [5] | akinbo@nira.org.ng @niraworks
ACTING CHIEF OPERATING OFFICER, DNS Africa Magazine www.dnsafrica.org [6] | akinbo@dnsafrica.org
@dnsafrica
NATIONAL CONVENER, Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng [5]
PRESIDENT, Young Internet Professionals (YiPS) www.yips.gnbo.com.ng [7] | akinbo@yips.org.ng
THE REDHUB. 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/ [8]
NATIONAL FOCAL POINT ( NIGERIA ) 2009-2011. Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org [9] www.takingitglobal.com [10] www.iaids.org [11] About me: http://profiles.tigweb.org/pscornerstone [12]
Links: ------ [1] https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... [2] https://www.icann.org/resources/pages/guidelines-2012-05-15-en [3] https://mm.icann.org/mailman/listinfo/accountability-cross-community [4] http://www.akinbo.ng [5] http://www.nira.org.ng/ [6] http://www.dnsafrica.org/ [7] http://wwwyips.org.ng/ [8] http://www.theredhub.org/ [9] http://www.youthaidscoalition.org [10] http://www.takingitglobal.com [11] http://www.iaids.org [12] http://profiles.tigweb.org/pscornerstone
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- 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
+1 Malcolm, well said. I would add one thing to your last paragraph, as follows in CAPS:
The radical idea would be to propose that directors are entitled, in the final analysis, to advance their own preferences, OR THE PREFERENCES OF ICANN'S LEGAL COUNSEL, in defiance of the community they are appointed to serve.
Keith On Jan 11, 2015, at 4:50 PM, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 2015-01-11 08:30, Adebunmi AKINBO wrote:
+1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react?
I would say that it is the responsibility of the Board to find ways to reconcile the community consensus with their legal obligations. Normally this is done through a combination of engagement with the community (so as to relieve unrealistic or unachievable expectations) and creative approaches to implementation (so that the objectives of the community are met in a manner compatible other obligations, which may not be the implementation originally envisaged).
These twin duties are, in my view, *both* fundamental. The latter should not be allowed to become an excuse for the Board to go its own way, in defiance of the community.
Ultimately, if a Board member believes they are incapable of satisfying all their duties, then their responsibility is to resign their office.
Indeed, the equivalent is true for ordinary commercial companies too; directors have the same responsibilities to the law and the company, on the one hand, and the company's owners on the other. So this is not a radical suggestion. The radical idea would be to propose that directors are entitled, in the final analysis, to advance their own preferences in defiance of the community they are appointed to serve.
Kind Regards,
Malcolm.
On the above, can we seek a legal opinion? Its important to address this scenario. This can happen at anytime in the lifetime of ICANN. -Akinbo. On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert. But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole". Alan At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the community, see ICANN’s own Management Operating Principles (2008 link [1], p. 5): "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.†So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react? From: Robin Gross <robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore. Best, Robin On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote: Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation: Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies. I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en [2] From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community [3] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community [3]
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community [3] -- EVANG. AKINBO A. A. CORNERSTONE, NIGERIA. +2348064464545, +2348089118151 | 2BAC511D. www.akinbo.ng [4] MEMBER, EXECUTIVE BOARD OF DIRECTORS, Nigeria Internet Registration Association (NiRA) www.nira.org.ng [5] | akinbo@nira.org.ng @niraworks ACTING CHIEF OPERATING OFFICER, DNS Africa Magazine www.dnsafrica.org [6] | akinbo@dnsafrica.org @dnsafrica NATIONAL CONVENER, Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng [5] PRESIDENT, Young Internet Professionals (YiPS) www.yips.gnbo.com.ng [7] | akinbo@yips.org.ng THE REDHUB. 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/ [8] NATIONAL FOCAL POINT ( NIGERIA ) 2009-2011. Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org [9] www.takingitglobal.com [10] www.iaids.org [11] About me: http://profiles.tigweb.org/pscornerstone [12] Links:
[1] https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles... [2] https://www.icann.org/resources/pages/guidelines-2012-05-15-en [3] https://mm.icann.org/mailman/listinfo/accountability-cross-community [4] http://www.akinbo.ng [5] http://www.nira.org.ng/ [6] http://www.dnsafrica.org/ [7] http://wwwyips.org.ng/ [8] http://www.theredhub.org/ [9] http://www.youthaidscoalition.org [10] http://www.takingitglobal.com [11] http://www.iaids.org [12] http://profiles.tigweb.org/pscornerstone _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- 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
Malcolm, I quite agree with the notion of engagement and the implication of modification to meet half way. -Akinbo. On Sun, Jan 11, 2015 at 10:38 PM, Malcolm Hutty <malcolm@linx.net> wrote:
On 2015-01-11 08:30, Adebunmi AKINBO wrote:
+1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react?
I would say that it is the responsibility of the Board to find ways to reconcile the community consensus with their legal obligations. Normally this is done through a combination of engagement with the community (so as to relieve unrealistic or unachievable expectations) and creative approaches to implementation (so that the objectives of the community are met in a manner compatible other obligations, which may not be the implementation originally envisaged).
These twin duties are, in my view, *both* fundamental. The latter should not be allowed to become an excuse for the Board to go its own way, in defiance of the community.
Ultimately, if a Board member believes they are incapable of satisfying all their duties, then their responsibility is to resign their office.
Indeed, the equivalent is true for ordinary commercial companies too; directors have the same responsibilities to the law and the company, on the one hand, and the company's owners on the other. So this is not a radical suggestion. The radical idea would be to propose that directors are entitled, in the final analysis, to advance their own preferences in defiance of the community they are appointed to serve.
Kind Regards,
Malcolm.
On the above, can we seek a legal opinion?
Its important to address this scenario.
This can happen at anytime in the lifetime of ICANN. -Akinbo.
On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I am not an ICANN Board Member. I am not a lawyer. I am not a
California law expert.
But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole".
Alan
At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce.
But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the community, see ICANN’s own Management Operating Principles (2008 link [1],
p. 5):
"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.â€
So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react?
From: Robin Gross <robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore.
Best, Robin
On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en [2]
From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
[3]
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
[3]
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community [3]
--
EVANG. AKINBO A. A. CORNERSTONE, NIGERIA. +2348064464545, +2348089118151 | 2BAC511D.
www.akinbo.ng [4]
MEMBER, EXECUTIVE BOARD OF DIRECTORS, Nigeria Internet Registration Association (NiRA) www.nira.org.ng [5] | akinbo@nira.org.ng @niraworks
ACTING CHIEF OPERATING OFFICER, DNS Africa Magazine www.dnsafrica.org [6] | akinbo@dnsafrica.org
@dnsafrica
NATIONAL CONVENER, Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng [5]
PRESIDENT, Young Internet Professionals (YiPS) www.yips.gnbo.com.ng [7] | akinbo@yips.org.ng
THE REDHUB. 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/ [8]
NATIONAL FOCAL POINT ( NIGERIA ) 2009-2011. Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org [9] www.takingitglobal.com [10] www.iaids.org [11] About me: http://profiles.tigweb.org/pscornerstone [12]
Links: ------ [1] https://www.icann.org/en/system/files/files/acct-trans- frameworks-principles-10jan08-en.pdf [2] https://www.icann.org/resources/pages/guidelines-2012-05-15-en [3] https://mm.icann.org/mailman/listinfo/accountability-cross-community [4] http://www.akinbo.ng [5] http://www.nira.org.ng/ [6] http://www.dnsafrica.org/ [7] http://wwwyips.org.ng/ [8] http://www.theredhub.org/ [9] http://www.youthaidscoalition.org [10] http://www.takingitglobal.com [11] http://www.iaids.org [12] http://profiles.tigweb.org/pscornerstone
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- 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
-- *Evang. Akinbo A. A. Cornerstone, Nigeria.* +2348064464545, +2348089118151 | 2BAC511D. www.akinbo.ng *Member, Executive Board of Directors*, Nigeria Internet Registration Association (NiRA) www.nira.org.ng | akinbo@nira.org.ng <akinbo@yips.org.ng> @niraworks *Acting Chief Operating Officer,* DNS Africa Magazine www.dnsafrica.org | akinbo@dnsafrica.org @dnsafrica *National Convener,* Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng <http://www.nira.org.ng/> *President,* Young Internet Professionals (YiPS) www.yips.gnbo.com.ng <http://wwwyips.org.ng/> | akinbo@yips.org.ng *The RedHub.* 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/ *National Focal Point ( Nigeria ) 2009-2011.* Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org www.takingitglobal.com www.iaids.org About me: http://profiles.tigweb.org/pscornerstone
Yes - I think Malcom has captured the situation well in his note below. I would say that the equivalent is also true of Governments as well - they have certain existing legal obligations that need to be reconciled with new policies that are implemented based on the will of the public. I will note that often when ICANN undertakes compliance action - the parties involved often threaten to sue ICANN. This seems to be a common response in some parts of the world. In general if ICANN believes that it is acting in compliance with laws and its agreements, and is acting in the global public interest it would defend any lawsuit. If legal advice indicates that a lawsuit has a reasonable chance of success against ICANN - that means that ICANN is either not acting in compliance with the law, or it is not acting in compliance with agreements that it has entered into. Neither are appropriate for ICANN. A key part of trust in ICANN is that it will comply with the terms of agreements it enters into. Major agreements are subject to public comment before approval by the ICANN Board. With respect to agreements ICANN has with gTLD registries and gTLD registrars - the agreements provide several options for making changes based on a consensus in the ICANN community. There is provision for gTLD registrars and gTLD registries to comply with consensus policies approved after an agreement is signed, and there are also options to work cooperatively with registries and registrars to make changes to the agreement. Major changes to agreements are published for public comment before approval by the board. Regards, Bruce Tonkin -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, 12 January 2015 8:38 AM To: Adebunmi AKINBO Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] Regarding role of Board directors On 2015-01-11 08:30, Adebunmi AKINBO wrote:
+1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react?
I would say that it is the responsibility of the Board to find ways to reconcile the community consensus with their legal obligations. Normally this is done through a combination of engagement with the community (so as to relieve unrealistic or unachievable expectations) and creative approaches to implementation (so that the objectives of the community are met in a manner compatible other obligations, which may not be the implementation originally envisaged). These twin duties are, in my view, *both* fundamental. The latter should not be allowed to become an excuse for the Board to go its own way, in defiance of the community. Ultimately, if a Board member believes they are incapable of satisfying all their duties, then their responsibility is to resign their office. Indeed, the equivalent is true for ordinary commercial companies too; directors have the same responsibilities to the law and the company, on the one hand, and the company's owners on the other. So this is not a radical suggestion. The radical idea would be to propose that directors are entitled, in the final analysis, to advance their own preferences in defiance of the community they are appointed to serve. Kind Regards, Malcolm.
On the above, can we seek a legal opinion? Its important to address this scenario.
This can happen at anytime in the lifetime of ICANN. -Akinbo.
On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert.
But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole".
Alan
At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the community, see ICANN’s own Management Operating Principles (2008 link [1], p. 5):
"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.â€
So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react?
From: Robin Gross <robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore.
Best, Robin
On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en [2] From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org
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--
EVANG. AKINBO A. A. CORNERSTONE, NIGERIA. +2348064464545, +2348089118151 | 2BAC511D.
www.akinbo.ng [4]
MEMBER, EXECUTIVE BOARD OF DIRECTORS, Nigeria Internet Registration Association (NiRA) www.nira.org.ng [5] | akinbo@nira.org.ng @niraworks
ACTING CHIEF OPERATING OFFICER, DNS Africa Magazine www.dnsafrica.org [6] | akinbo@dnsafrica.org
@dnsafrica
NATIONAL CONVENER, Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng [5]
PRESIDENT, Young Internet Professionals (YiPS) www.yips.gnbo.com.ng [7] | akinbo@yips.org.ng
THE REDHUB. 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/ [8]
NATIONAL FOCAL POINT ( NIGERIA ) 2009-2011. Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org [9] www.takingitglobal.com [10] www.iaids.org [11] About me: http://profiles.tigweb.org/pscornerstone [12]
Links: ------ [1] https://www.icann.org/en/system/files/files/acct-trans-frameworks-prin ciples-10jan08-en.pdf [2] https://www.icann.org/resources/pages/guidelines-2012-05-15-en [3] https://mm.icann.org/mailman/listinfo/accountability-cross-community [4] http://www.akinbo.ng [5] http://www.nira.org.ng/ [6] http://www.dnsafrica.org/ [7] http://wwwyips.org.ng/ [8] http://www.theredhub.org/ [9] http://www.youthaidscoalition.org [10] http://www.takingitglobal.com [11] http://www.iaids.org [12] http://profiles.tigweb.org/pscornerstone
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-- 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
In response to Akinbo's question below, I would like to ask the Co-Chairs to add a discussion of expert legal advice to Tuesday's agenda. I believe the CCWG will likely need our own subject matter expert in California not-for-profit corporate law. It's probably time we discuss how best to secure these services and to ensure that individual is in the service of the CCWG and the community, so we are not relying only on ICANN's interpretations. Thanks, Keith On Jan 11, 2015, at 3:32 AM, "Adebunmi AKINBO" <akinbo.adebunmi@gmail.com<mailto:akinbo.adebunmi@gmail.com>> wrote: +1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react? On the above, can we seek a legal opinion? Its important to address this scenario. This can happen at anytime in the lifetime of ICANN. -Akinbo. On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> wrote: I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert. But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole". Alan At 10/01/2015 08:40 PM, Steve DelBianco wrote: Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the community, see ICANN’s own Management Operating Principles (2008 link<https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles...>, p. 5): "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.†So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react? From: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: " accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-Accountability] Regarding role of Board directors Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore. Best, Robin On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote: Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation: Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies. I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en
From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. 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 _______________________________________________ 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 -- Evang. Akinbo A. A. Cornerstone, Nigeria. +2348064464545, +2348089118151 | 2BAC511D. www.akinbo.ng<http://www.akinbo.ng> Member, Executive Board of Directors, Nigeria Internet Registration Association (NiRA) www.nira.org.ng<http://www.nira.org.ng/> | akinbo@nira.org.ng<mailto:akinbo@yips.org.ng> @niraworks Acting Chief Operating Officer, DNS Africa Magazine www.dnsafrica.org<http://www.dnsafrica.org/> | akinbo@dnsafrica.org<mailto:akinbo@dnsafrica.org> @dnsafrica National Convener, Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng<http://www.nira.org.ng/> President, Young Internet Professionals (YiPS) www.yips.gnbo.com.ng<http://wwwyips.org.ng/> | akinbo@yips.org.ng<mailto:akinbo@yips.org.ng> The RedHub. 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/ National Focal Point ( Nigeria ) 2009-2011. Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org<http://www.youthaidscoalition.org> www.takingitglobal.com<http://www.takingitglobal.com> www.iaids.org<http://www.iaids.org> About me: http://profiles.tigweb.org/pscornerstone _______________________________________________ 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
I would like to strongly support Keith's proposal that we 1) request the ability to consult legal expert in California corporate law (as opposed to strictly nonprofit corporate law, as the new Benefits Corporation is a vehicle we may want to consider) and 2) we ensure the expert is not affiliated in any way with ICANN legal or any legal contractor, such as Jones Day, which has a a historical relationship with ICANN. To the extent any participant can or would be allowed to be involved in the process by which such an expert is selected, I certainly would like to be part of any such effort. -----Original Message----- From: "Drazek, Keith" <kdrazek@verisign.com> To: Adebunmi AKINBO <akinbo.adebunmi@gmail.com> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Date: Mon, 12 Jan 2015 04:57:27 +0000 Subject: Re: [CCWG-Accountability] Regarding role of Board directors In response to Akinbo's question below, I would like to ask the Co-Chairs to add a discussion of expert legal advice to Tuesday's agenda. I believe the CCWG will likely need our own subject matter expert in California not-for-profit corporate law. It's probably time we discuss how best to secure these services and to ensure that individual is in the service of the CCWG and the community, so we are not relying only on ICANN's interpretations. Thanks, Keith On Jan 11, 2015, at 3:32 AM, "Adebunmi AKINBO" <akinbo.adebunmi@gmail.com> wrote: +1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react? On the above, can we seek a legal opinion? Its important to address this scenario. This can happen at anytime in the lifetime of ICANN. -Akinbo. On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote: I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert. But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole". Alan At 10/01/2015 08:40 PM, Steve DelBianco wrote: Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the community, see ICANN’s own Management Operating Principles (2008 link, p. 5): "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.†So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react? From: Robin Gross <robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore. Best, Robin On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote: Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation: Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies. I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en
From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. Regards, Bruce Tonkin
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Evang. Akinbo A. A. Cornerstone, Nigeria. +2348064464545, +2348089118151 | 2BAC511D. www.akinbo.ng Member, Executive Board of Directors, Nigeria Internet Registration Association (NiRA) www.nira.org.ng | akinbo@nira.org.ng @niraworks Acting Chief Operating Officer, DNS Africa Magazine www.dnsafrica.org | akinbo@dnsafrica.org @dnsafrica National Convener, Nigerian Youth Coalition on Internet Governance (NG-YCIG) www.ycig.org.ng President, Young Internet Professionals (YiPS) www.yips.gnbo.com.ng | akinbo@yips.org.ng The RedHub. 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/ National Focal Point ( Nigeria ) 2009-2011. Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org www.takingitglobal.com www.iaids.org About me: http://profiles.tigweb.org/pscornerstone _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Malcolm, Dear Keith Dear All Thank you very much for your contributions. First I will comment on Malcolm,s position He indicated Quote *"I would say that it is the responsibility of the Board to find ways to reconcile the community consensus with their legal obligations. Normally this is done through a combination of engagement with the community (so as to relieve unrealistic or unachievable expectations) and creative approaches to implementation (so that the objectives of the community are met in a manner compatible other obligations, which may not be the implementation originally envisaged)."* Unquote Kavouss Comment 1.Since currently ICANN functions , amongs others, Under the Incorporation Articles and Californian Laws and Rules ,it is incumbent to it to respect those Laws and Rules, thus the pressure or the burden would be shifted to the community. Consequently ,the argument is not a balanced approach. This inconsistency between the communit6y consensus outcome and those Laws and Rules was raised before and is not yet resolved 2. Malcolm also said Quote *"These twin duties are, in my view, *both* fundamental. The latter should not be allowed to become an excuse for the Board to go its own way, in defiance of the community"* Unqupote Comment from Kavouss I fully agree with your analysis 3. Malcolm also POINTED OUT Quote "Ultimately, if a Board member believes they are incapable of satisfying all their duties, then their responsibility is to resign their office" Unquote Comment from Kavouss Here also I fully agree with the analysis . 4. The last part of Malcolms opinion is Quote *"The radical idea would be to propose that directors are entitled, in the final analysis, to advance their own preferences in defiance of the community they are appointed to serve"* Unquote Comment from Kavouss *Here I disagree with the analysis* Now on the Keith's position Quote "The radical idea would be to propose that directors
are entitled, in the final analysis, to advance their own preferences, OR THE PREFERENCES OF ICANN'S LEGAL COUNSEL, in"
Unquote Comment from Kavouss *Here also I disagree with the amendment made by Keith* Now on the Alan's position Quote *"But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole".* Unquote Comment from Kavouss It is not clear whether Alan in favour of Malcolm's views or against it The argument he made is a double face argument.,on the one hand he expressed worries about being sued and ,on the other hand, he refers to *A**rticles of *incorporation which includes the phrase "the corporation shall operate for the benefit of the internet community as a whole" There seems to be a need to clarify his position i.e in favour or anaist Malcolm’s views Tks Kavouss 2015-01-12 9:24 GMT+01:00 Edward Morris <emorris@milk.toast.net>:
I would like to strongly support Keith's proposal that we 1) request the ability to consult legal expert in California corporate law (as opposed to strictly nonprofit corporate law, as the new Benefits Corporation is a vehicle we may want to consider) and 2) we ensure the expert is not affiliated in any way with ICANN legal or any legal contractor, such as Jones Day, which has a a historical relationship with ICANN. To the extent any participant can or would be allowed to be involved in the process by which such an expert is selected, I certainly would like to be part of any such effort.
-----Original Message----- From: "Drazek, Keith" <kdrazek@verisign.com> To: Adebunmi AKINBO <akinbo.adebunmi@gmail.com> Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Date: Mon, 12 Jan 2015 04:57:27 +0000 Subject: Re: [CCWG-Accountability] Regarding role of Board directors
In response to Akinbo's question below, I would like to ask the Co-Chairs to add a discussion of expert legal advice to Tuesday's agenda.
I believe the CCWG will likely need our own subject matter expert in California not-for-profit corporate law.
It's probably time we discuss how best to secure these services and to ensure that individual is in the service of the CCWG and the community, so we are not relying only on ICANN's interpretations.
Thanks, Keith
On Jan 11, 2015, at 3:32 AM, "Adebunmi AKINBO" <akinbo.adebunmi@gmail.com> wrote:
+1 DelBianco = So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you believe a board member is obliged to react?
On the above, can we seek a legal opinion? Its important to address this scenario.
This can happen at anytime in the lifetime of ICANN. -Akinbo.
On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I am not an ICANN Board Member. I am not a lawyer. I am not a California law expert.
But I "hope" that the answer is "it depends". I would like to think that the risk of being sued and the potential liabilities (and the chances of losing!) would be weighed against the ICANN Mission, Core Values and its Articles of Incorporation which includes the phrase "The Corporation shall operate for the benefit of the Internet community as a whole".
Alan
At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce. But if we are considering whether the bylaws refer to ‘ICANN’ as the corporation or the *community*, see ICANN’s own Management Operating Principles (2008 link <https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles...>, p. 5): "The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.â€
So, when the Board is confronting a community consensus to take an action that could put the corporation at risk of a lawsuit … how do you bellieve a board member is obliged to react?
From: Robin Gross < robin@ipjustice.org> Date: Saturday, January 10, 2015 at 8:10 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] Regarding role of Board directors
Thanks for the info, Bruce. It is worth pointing out that regardless of how those bylaws are interpreted, under California law, nonprofit board members owe a legal duty of loyalty to the corporation and there isn't anything that this working group can do change California corporations law and the legal duty of loyalty each board member owes to the corporation (as a corporation, yes, not staff). This is where a tension comes in for trying to do public governance via a private corporation - the two concepts weren't "built" for the other, so there are gaps and some issues as a result. I think this is an issue our group should explore.
Best, Robin
On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote: Hello Steve, ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation: Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies. I have often heard you refer to that specific clause in the bylaws over the past year. I think it is worth understanding it a little more. I personally believe that the intent of putting this clause in the bylaws is that several Board members are appointed to the Board from a specific stakeholder group, and this makes it clear that Board members need to act on behalf of all stakeholders not just the stakeholder group that appointed them. So from my perspective it is a higher level of accountability than simply being accountable to the group that appointed them. We certainly make that clear as new directors join the Board. The clause does not mean that somehow a Board director is now accountable to the staff in the organization rather than the "ICANN community". For those appointed to the Board by the nominating committee - I think it is already clear to them that they represent stakeholders as a whole, as they go through a rigorous interview process in front of the whole nominating committee. In my experience as Board director, Boards in general operate on behalf of their stakeholders - these stakeholders could be the general public, shareholders, or members. Under its articles of incorporation, ICANN is structured to act on behalf of the global public interest - i.e. the general public. In addition to acting on behalf of stakeholders, a board is also accountable to govern an organization in accordance with the law. This to me is the "corporate" obligation that you often refer. This includes ensuring that the organization can meet its financial commitments, ensure the staff have a safe workplace, ensure there are financial controls to stop fraud, ensure the organization complies with any contracts it has entered into etc. Directors of ICANN can be held personally liable under law if they are negligent. After the ATRT1 review, a set of governance guidelines were established to make this clearer: https://www.icann.org/resources/pages/guidelines-2012-05-15-en From the section on the role of directors: "The fundamental responsibility of Directors (as defined below) is to exercise their business judgment to act in what they reasonably believe to be the best interests of ICANN and in the global public interest, taking account of the interests of the Internet community as a whole rather than any individual group or interest" "It is the duty of the Board to oversee management's performance to ensure that ICANN operates in an effective, efficient and ethical manner. The Board will also be responsible for overseeing the development of ICANN's short, medium and long-term strategic plans, ensuring that they will result in sustainable outcomes, and taking account of the critical interdependencies of financial, human, natural, manufactured, social and intellectual capitals." "Some of the Board's key responsibilities are to ensure that ICANN's ethics are managed effectively, that ICANN as a whole (as well as individual Board and staff members) operates pursuant to the highest ethical standards, that ICANN complies with applicable laws, and that ICANN considers adherence to best practices in all areas of operation." The bylaws could certainly be enhanced to incorporate the notion in the Governance Guidelines that Board directors are accountable to the Internet community as a whole. 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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-- *Evang. Akinbo A. A. Cornerstone, Nigeria.* +2348064464545, +2348089118151 | 2BAC511D. www.akinbo.ng
*Member, Executive Board of Directors*, Nigeria Internet Registration Association (NiRA) www.nira.org.ng | akinbo@nira.org.ng <akinbo@yips.org.ng> @niraworks
*Acting Chief Operating Officer,* DNS Africa Magazine www.dnsafrica.org | akinbo@dnsafrica.org @dnsafrica
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*The RedHub.* 12, Afonka Odebunmi Street, Lagos State. http://www.theredhub.org/
*National Focal Point ( Nigeria ) 2009-2011.* Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal) www.youthaidscoalition.org www.takingitglobal.com www.iaids.org About me: http://profiles.tigweb.org/pscornerstone
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participants (9)
-
Adebunmi AKINBO -
Alan Greenberg -
Bruce Tonkin -
Drazek, Keith -
Edward Morris -
Kavouss Arasteh -
Malcolm Hutty -
Robin Gross -
Steve DelBianco