member organization and single membership structure
From: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Date: woensdag 22 april 2015 14:16 To: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>" <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>>, Thomas Rickert <rickert@anwaelte.de<mailto:rickert@anwaelte.de>>, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> Subject: member organization and single membership structure Dear co-chairs, all, Two points: 1) I stopped my participation in yesterday night’s (my time) CCWG call somewhere halfway agenda item “5. Legal advice”. Mainly because I think we’re wasting so much precious time with the discussion on and comparison of two models, of which one should have been written off sometime back. My earlier emails copied below should provide more information on my rationale, but should also serve as formal input into the process. 2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off. So, co-chairs: what is happening here or what have I missed? Best, Roelof On Fri, Apr 17, 2015 at 11:10 AM, Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Dear Jordan, all, I couldn’t attend the call, so I probably missed something. But how did we end up with the two law firms we hire stating: „On balance, “member” organization provides the clearest path for the ICANN community to exercise the mechanisms and powers under consideration. „ and our rapporteur concluding: "Following the CCWG meeting on 10 April, the rapporteur had assumed there would be clarity regarding the proposed mechanism. This has not occurred„ Best, Roelof On Sun, Apr 19, 2015 at 12:25 PM, Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Greg, Jordan, What I fail to understand is that -because we do not have the expertise „in house”- we hire two firms that are experts in this field, they give us their shared opinion and we do not follow that. It seems to me that this is one of those things that makes this whole process sometimes so slow and incredibly time consuming. Do not misunderstand me, I respect the legal experts we have in the CCWG. But we pay (ICANN pays, so the internet community pays) dearly for this advice, they are both renown firms that we took quite some time to select. Why not accept the outcome and move forward, spending our precious time on all the work that still has to be done? Best, Roelof On Mon, Apr 20, 2015 at 11:04 AM, Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Greg, Thanks for that. Still, if I look at the difference in "amount of boxes ticked" in the part „summary of desired powers” of the slide deck of 14 April prepared by counsel, I see no point in continuing to evaluate counsel’s advice re designators. Maybe you can help me out on another point though. In their memorandum/legal assessment of April 10, Sidley and Adler & Colvin mentioned the possibility of a „sole membership” structure. Meaning –as far as I understood it- that not every AC and every SO would become a member (and thus would have to become a legal entity), but the group of representatives of the SO’s and AC’s would form a single legal entity and would become ICANN’s sole member. I have sent several emails to this list suggesting we follow this up as one of the serious possibilities, without –as far as I am aware- any effect. Do you have any idea what happened to this particular part of counsel’s advice? Best, Roelof Groet, Roelof
Hi, On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity. How would it work? Would we continue to appoint Directors just as we do now? Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea? thanks avri --- This email has been checked for viruses by Avast antivirus software. http://www.avast.com
Hi, Further, there may be real benefit in defining the ICANN Community as a legal entity in that it would give SOAC a separate visibility as the entity that ICANN corporate is accountable to. The more I think about it, the appealing it seems.
From the ATRT perspective, we would need to explore whether it would require any modification to the AOC- bylaw import. Partly this would depend on what sort of internal structure the ICANN SOAC entity adopted and what powers it held.
avri On 22-Apr-15 09:09, Avri Doria wrote:
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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Hi Avri, The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April). And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status Best, Roelof From: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure Hi, On 22-Apr-15 08:26, Roelof Meijer wrote: 2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off. In some way that might lessen the complexity of making most SOAC an individual legal entity. How would it work? Would we continue to appoint Directors just as we do now? Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea? thanks avri ________________________________ [Avast logo]<http://www.avast.com/> This email has been checked for viruses by Avast antivirus software. www.avast.com<http://www.avast.com/>
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted? Matthew On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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I look forward to independent counsel's analysis of this proposal. Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit. I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up. Ed Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote: Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote: 2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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Hi Ed, Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from. Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power. Best, Roelof From: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>> Cc: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>>, "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure I look forward to independent counsel's analysis of this proposal. Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit. I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up. Ed Sent from my iPad On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>> wrote: If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted? Matthew On 4/22/2015 2:56 PM, Roelof Meijer wrote: Hi Avri, The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April). And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status Best, Roelof From: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure Hi, On 22-Apr-15 08:26, Roelof Meijer wrote: 2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off. In some way that might lessen the complexity of making most SOAC an individual legal entity. How would it work? Would we continue to appoint Directors just as we do now? Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea? thanks avri ________________________________ [Avast logo]<http://www.avast.com/> This email has been checked for viruses by Avast antivirus software. www.avast.com<http://www.avast.com/> _______________________________________________ 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 -- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987 _______________________________________________ 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
Roelof: Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works. If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity. I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues. Greg On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Hi Ed,
Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.
Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.
Best,
Roelof
From: Edward Morris <egmorris1@toast.net> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org> Cc: Roelof Meijer <roelof.meijer@sidn.nl>, "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" < accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] member organization and single membership structure
I look forward to independent counsel's analysis of this proposal.
Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.
I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.
Ed
Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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Thanks all and Roelof for raising this again. I don't think this model has been written off, and think it is actually quite a nice middle ground between membership and other. It would involve some "body" of the sort we charted earlier in our work with the PCCWG/Community Council, so it isn't mysterious. I also echo your point that in the powers we have sought, those accruing to members through California law haven't been on our list of requirements. So even getting them in any form would be some sort of bonus. best Jordan On 23 April 2015 at 04:51, Greg Shatan <gregshatanipc@gmail.com> wrote:
Roelof:
Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works.
If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity.
I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues.
Greg
On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Hi Ed,
Although I have no clue about what it actually means, I am quite positive that "components of the community" .. "be[ing] able to avail itself of derivative rights or the right of inspection" is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.
Additionally, I do not see why stakeholders represented "in a single tent" requiring a specified majority among those representatives to execute a specific power (let's say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.
Best,
Roelof
From: Edward Morris <egmorris1@toast.net> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org> Cc: Roelof Meijer <roelof.meijer@sidn.nl>, "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" < accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] member organization and single membership structure
I look forward to independent counsel's analysis of this proposal.
Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.
I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.
Ed
Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the "Community Council" the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives" (from an email of 14 April).
And I would think it would enable the SO's and AC's themselves to continue appointing directors, as they do now. But that's just guessing, based on the fact that the SO's and AC's themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure - an option mentioned by Sidley and Adler & Colving in their legal advice - several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *A better world through a better Internet *
I'd like to point out that this was brought up on today's Legal Sub Team call and was the subject of robust discussion amongst the team and with counsel. I'm sure this will be reflected in upcoming meetings and on the list. Greg On Wed, Apr 22, 2015 at 2:41 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Thanks all and Roelof for raising this again. I don't think this model has been written off, and think it is actually quite a nice middle ground between membership and other. It would involve some "body" of the sort we charted earlier in our work with the PCCWG/Community Council, so it isn't mysterious.
I also echo your point that in the powers we have sought, those accruing to members through California law haven't been on our list of requirements. So even getting them in any form would be some sort of bonus.
best Jordan
On 23 April 2015 at 04:51, Greg Shatan <gregshatanipc@gmail.com> wrote:
Roelof:
Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works.
If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity.
I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues.
Greg
On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Hi Ed,
Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.
Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.
Best,
Roelof
From: Edward Morris <egmorris1@toast.net> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org> Cc: Roelof Meijer <roelof.meijer@sidn.nl>, "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" < accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] member organization and single membership structure
I look forward to independent counsel's analysis of this proposal.
Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.
I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.
Ed
Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
A quick view specifically on "rights of inspection". I think enabling that some entity gets this right would be one of the most useful of all possible accountability improvements. It would - perhaps over time - pull out any motivations that might exist for ICANN to be misleading or less than truthful in its reporting. This is going to be especially important as ICANN receives increasingly large amounts of revenue and particularly given its current weak financial controls. (See: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/) I predict that ICANN corporate will fight hard to prevent any entity from gaining this right. And that it will continue to fight hard even when someone has that right. That in itself should be a good indicator for why it should be a redline for the accountability group. To my mind, not allowing ICANN to hide information is the epitome of actual accountability. If you can't hide it, then to save on embarrassment you consider how best to share it. Over time, everyone gains. Kieren On Wed, Apr 22, 2015 at 9:51 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Roelof:
Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works.
If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity.
I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues.
Greg
On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Hi Ed,
Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.
Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.
Best,
Roelof
From: Edward Morris <egmorris1@toast.net> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org> Cc: Roelof Meijer <roelof.meijer@sidn.nl>, "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" < accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] member organization and single membership structure
I look forward to independent counsel's analysis of this proposal.
Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.
I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.
Ed
Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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+1 On 08-Jul-15 18:37, Kieren McCarthy wrote:
A quick view specifically on "rights of inspection".
I think enabling that some entity gets this right would be one of the most useful of all possible accountability improvements.
It would - perhaps over time - pull out any motivations that might exist for ICANN to be misleading or less than truthful in its reporting. This is going to be especially important as ICANN receives increasingly large amounts of revenue and particularly given its current weak financial controls.
(See: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/)
I predict that ICANN corporate will fight hard to prevent any entity from gaining this right. And that it will continue to fight hard even when someone has that right. That in itself should be a good indicator for why it should be a redline for the accountability group.
To my mind, not allowing ICANN to hide information is the epitome of actual accountability. If you can't hide it, then to save on embarrassment you consider how best to share it. Over time, everyone gains.
Kieren
On Wed, Apr 22, 2015 at 9:51 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Roelof:
Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works.
If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity.
I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues.
Greg
On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Hi Ed,
Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.
Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.
Best,
Roelof
From: Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org <mailto:mshears@cdt.org>> Cc: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure
I look forward to independent counsel's analysis of this proposal.
Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.
I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.
Ed
Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org <mailto:mshears@cdt.org>> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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To go further. There have been attempts to get ICANN in ATRT and other recommendations, as a Multistakeholder organization, to become transparent by default. These changes are still pending, though approved It was part of 9.4 b.
9.4. Develop Transparency Metrics and Reporting The Board should ensure that as part of its yearly report, ICANN include, among other things, but not be limited to: a. A report on the broad range of Transparency issues with supporting metrics to facilitate accountability. b. A discussion of the degree to which ICANN, both staff and community, are adhering to a default standard of transparency in all policy, implementation and administrative actions; as well as the degree to which all narratives, redaction, or other practices used to not disclose information to the ICANN community are documented in a transparent manner. c. Statistical reporting to include at least the following elements: i. requests of the Documentary Information Disclosure Policy (DIDP) process and the disposition of requests. ii. percentage of redacted-to-unredacted Board briefing materials released to the general public. iii. number and nature of issues that the Board determined should be treated confidentially. 8 iv. other ICANN usage of redaction and other methods to not disclose information to the community and statistics on reasons given for usage of such methods. d. A section on employee “Anonymous Hotline” and/or other whistleblowing activity, to include metrics on: i. Reports submitted. ii. Reports verified as containing issues requiring action. iii. Reports that resulted in change to ICANN practices. e. An analysis of the continued relevance and usefulness of existing transparency metrics, including i. Considerations on whether activities are being geared toward the metrics (i.e. “teaching to the test”) without contributing toward the goal of genuine transparency. ii. Recommendations for new metrics.
We do not need membership for this, just a commitment to fulfill the recommendations for full transparency that ICANN has received from almost every review it has had of accountability and transparency. avri On 08-Jul-15 18:47, Avri Doria wrote:
+1
On 08-Jul-15 18:37, Kieren McCarthy wrote:
A quick view specifically on "rights of inspection".
I think enabling that some entity gets this right would be one of the most useful of all possible accountability improvements.
It would - perhaps over time - pull out any motivations that might exist for ICANN to be misleading or less than truthful in its reporting. This is going to be especially important as ICANN receives increasingly large amounts of revenue and particularly given its current weak financial controls.
(See: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/)
I predict that ICANN corporate will fight hard to prevent any entity from gaining this right. And that it will continue to fight hard even when someone has that right. That in itself should be a good indicator for why it should be a redline for the accountability group.
To my mind, not allowing ICANN to hide information is the epitome of actual accountability. If you can't hide it, then to save on embarrassment you consider how best to share it. Over time, everyone gains.
Kieren
On Wed, Apr 22, 2015 at 9:51 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Roelof:
Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works.
If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity.
I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues.
Greg
On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Hi Ed,
Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.
Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.
Best,
Roelof
From: Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org <mailto:mshears@cdt.org>> Cc: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure
I look forward to independent counsel's analysis of this proposal.
Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.
I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.
Ed
Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org <mailto:mshears@cdt.org>> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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On 09/07/2015 00:09, Avri Doria wrote:
To go further.
There have been attempts to get ICANN in ATRT and other recommendations, as a Multistakeholder organization, to become transparent by default. These changes are still pending, though approved
This is sounding like a common pattern: that recommendations were made by ATRT, agreed, but "still pending". It rather saps one's faith that ATRT is an effective mechanism at all.
We do not need membership for this, just a commitment to fulfill the recommendations for full transparency that ICANN has received from almost every review it has had of accountability and transparency.
You say you have had this commitment already, and yet it is "still pending". Why would you think yet another such commitment would make any difference this time? Malcolm. -- 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
Hi, This is why I think it is critical to do ATRT3 during 2016 as expected: so that while the transition is being implemented we can document the status of all ATRT recommendations at time 0. As the work in ATRT2 showed when reviewing the changes from ATRT1, it takes a while, but stuff does get done and things do change. Some of the changes ATRT recommends take time to implement. But I do believe the IRP changes are essential. Doing ATRT3 will also, I expect, allow us to fine tune the goals for WS2. avri On 08-Jul-15 19:25, Malcolm Hutty wrote:
On 09/07/2015 00:09, Avri Doria wrote:
To go further.
There have been attempts to get ICANN in ATRT and other recommendations, as a Multistakeholder organization, to become transparent by default. These changes are still pending, though approved This is sounding like a common pattern: that recommendations were made by ATRT, agreed, but "still pending".
It rather saps one's faith that ATRT is an effective mechanism at all.
We do not need membership for this, just a commitment to fulfill the recommendations for full transparency that ICANN has received from almost every review it has had of accountability and transparency. You say you have had this commitment already, and yet it is "still pending".
Why would you think yet another such commitment would make any difference this time?
Malcolm.
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+99 On 07/08/2015 11:37 PM, Kieren McCarthy wrote:
A quick view specifically on "rights of inspection".
I think enabling that some entity gets this right would be one of the most useful of all possible accountability improvements.
It would - perhaps over time - pull out any motivations that might exist for ICANN to be misleading or less than truthful in its reporting. This is going to be especially important as ICANN receives increasingly large amounts of revenue and particularly given its current weak financial controls.
(See: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/)
I predict that ICANN corporate will fight hard to prevent any entity from gaining this right. And that it will continue to fight hard even when someone has that right. That in itself should be a good indicator for why it should be a redline for the accountability group.
To my mind, not allowing ICANN to hide information is the epitome of actual accountability. If you can't hide it, then to save on embarrassment you consider how best to share it. Over time, everyone gains.
Kieren
On Wed, Apr 22, 2015 at 9:51 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Roelof:
Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works.
If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity.
I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues.
Greg
On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Hi Ed,
Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.
Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.
Best,
Roelof
From: Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org <mailto:mshears@cdt.org>> Cc: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure
I look forward to independent counsel's analysis of this proposal.
Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.
I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.
Ed
Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org <mailto:mshears@cdt.org>> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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Dear Roelof Thank you for your useful thoughts and thoughts of those other colleagues in exercising the inspection rights and other rights as mentioned I need some clarification on your message in saying Quote *" But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues."* Unquote What do you mean by other powers? Apart from recalling individual Board,s member what are those other powers from 7 powers that you categorized *as raises substantial issues?* Regards kavouss 2015-07-09 11:00 GMT+03:00 Nigel Roberts <nigel@channelisles.net>:
+99
On 07/08/2015 11:37 PM, Kieren McCarthy wrote:
A quick view specifically on "rights of inspection".
I think enabling that some entity gets this right would be one of the most useful of all possible accountability improvements.
It would - perhaps over time - pull out any motivations that might exist for ICANN to be misleading or less than truthful in its reporting. This is going to be especially important as ICANN receives increasingly large amounts of revenue and particularly given its current weak financial controls.
(See: http://www.ionmag.asia/2015/07/icann-finances-swallow-the-money/)
I predict that ICANN corporate will fight hard to prevent any entity from gaining this right. And that it will continue to fight hard even when someone has that right. That in itself should be a good indicator for why it should be a redline for the accountability group.
To my mind, not allowing ICANN to hide information is the epitome of actual accountability. If you can't hide it, then to save on embarrassment you consider how best to share it. Over time, everyone gains.
Kieren
On Wed, Apr 22, 2015 at 9:51 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Roelof:
Derivative rights and the right of inspection are statutory rights of members under California law. Under a multiple member model, each member could choose to exercise these rights individually. Under a single member model, only the single statutory member would have these rights. Maybe this could be "fixed" so that individual SOACs could exercise these rights in the name of the single member, but I don't know if that works.
If we don't care to have those rights (or any of the rights that members have individually), then a single member set-up might work. I would note that the right to inspect ICANN documents (currently only available in a DIDP) has been an issue of concern. I would also note that derivative rights are a powerful tool for enforcement against an entity.
I agree that when it comes to spilling the whole board, or other powers intended to be exercised by the community as a whole,, the single member model has the least issues vis a vis the multiple member model. But when it comes to recalling an individual board member or other powers to be exercised by a single member, the single member model raises substantial issues.
Greg
On Wed, Apr 22, 2015 at 11:28 AM, Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Hi Ed,
Although I have no clue about what it actually means, I am quite positive that “components of the community” .. “be[ing] able to avail itself of derivative rights or the right of inspection” is not a requirement that we formulated as a power, nor a criterium we formulated for the selection of a mechanism. So I am at a bit of a loss where that comes from.
Additionally, I do not see why stakeholders represented “in a single tent” requiring a specified majority among those representatives to execute a specific power (let’s say spilling the board) would have less vitality and more blob, than stakeholders in separate legal entities equally requiring the same specified majority among those entities to execute a specific power.
Best,
Roelof
From: Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> Date: woensdag 22 april 2015 16:24 To: Matthew Shears <mshears@cdt.org <mailto:mshears@cdt.org>> Cc: Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>, "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure
I look forward to independent counsel's analysis of this proposal.
Certainly my principle objection with this model is the nullification of many of the benefits membership would bring to components of the community. If the GNSO, for example, felt strongly about an issue it would not be able to avail itself of derivative rights or the right of inspection without the consent of the greater community. Diversity is the strength of the multistakeholder model and folding all rights into a single tent would dampen the vitality of the diverse bottom up process and instead submerge it into a giant blob like unit.
I do remain open, though, to others thoughts on the matter and thank Roelof for bringing it up.
Ed
Sent from my iPad
On Apr 22, 2015, at 3:02 PM, Matthew Shears <mshears@cdt.org <mailto:mshears@cdt.org>> wrote:
If this would achieve the same result as the broader membership model and at the same time be simpler to implement shouldn't it be looked at again? Was there a specific reason it was discounted?
Matthew
On 4/22/2015 2:56 PM, Roelof Meijer wrote:
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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Interesting, we’re back on the subject of a single member structure. It was written off before Cheers, Roelof From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure Hi Avri, The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April). And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status Best, Roelof From: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure Hi, On 22-Apr-15 08:26, Roelof Meijer wrote: 2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off. In some way that might lessen the complexity of making most SOAC an individual legal entity. How would it work? Would we continue to appoint Directors just as we do now? Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea? thanks avri ________________________________ [Avast logo]<http://www.avast.com/> This email has been checked for viruses by Avast antivirus software. www.avast.com<http://www.avast.com/>
Maybe we are getting smarter J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> Date: Tuesday, July 7, 2015 at 9:56 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] FW: member organization and single membership structure Interesting, we’re back on the subject of a single member structure. It was written off before Cheers, Roelof From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure Hi Avri, The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April). And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status Best, Roelof From: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure Hi, On 22-Apr-15 08:26, Roelof Meijer wrote: 2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off. In some way that might lessen the complexity of making most SOAC an individual legal entity. How would it work? Would we continue to appoint Directors just as we do now? Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea? thanks avri ________________________________ [Avast logo]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMGaQ&...> This email has been checked for viruses by Avast antivirus software. www.avast.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMGaQ&...>
I understand the powers would be bestowed on the council individuals and not their source position; For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members. However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case Regards Sent from Google nexus 4 kindly excuse brevity and typos. On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org> on behalf of Roelof Meijer <roelof.meijer@sidn.nl> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org" <avri@acm.org>, " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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Seun, Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation. This is not the case in the "single member model," where there is only one statutory member. Greg On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos. On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl <javascript:_e(%7B%7D,'cvml','Roelof.Meijer@sidn.nl');>> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces@icann.org');>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl <javascript:_e(%7B%7D,'cvml','roelof.meijer@sidn.nl');>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>" < avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>>, " accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>" <accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>
Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>> Organization: Technicalities Reply-To: "avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>" < avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>" <accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>
Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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Can someone explain to me how SO/ACs can become statutory members. My understanding is that SO/ACs have no legal personality -- they are, in effect, departments of the Corporation. So in order to have the ability for an SO (e.g. the ccNSO) to become a statutory member, it would require to come into existence with a separate legal personality, with it's own members. This is all fine, so far, and I would personally have no issue were, say the ccNSO to become a distinct body corporate. But many ccNSO members could be legally prevented from being members -- specifically those that are public authorities (i.e. government run). (I can't imagine the Government of North Korea would legally be able to sign up to the ICANN bylaws -- and such ccTLDs CANNOT be excluded from participation in ccNSO matters). On 09/07/15 13:34, Greg Shatan wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation. This is not the case in the "single member model," where there is only one statutory member.
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl <javascript:_e(%7B%7D,'cvml','Roelof.Meijer@sidn.nl');>> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces@icann.org');>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl <javascript:_e(%7B%7D,'cvml','roelof.meijer@sidn.nl');>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>" <avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>>, "accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>" <accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>> Organization: Technicalities Reply-To: "avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>" <avri@acm.org <javascript:_e(%7B%7D,'cvml','avri@acm.org');>> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>" <accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model? However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA. Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications. Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos. On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org> on behalf of Roelof Meijer <roelof.meijer@sidn.nl> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org" <avri@acm.org>, " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
Greg, all I have a deadly serious question. Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability? So why is anyone even considering UA status for more than 10 seconds? Nigel See http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-... On 09/07/15 14:35, Seun Ojedeji wrote:
On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model?
However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA.
Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications.
Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org> on behalf of Roelof Meijer <roelof.meijer@sidn.nl> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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The key to understanding is humility - my view !
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Nigel, A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic. Greg On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-...
On 09/07/15 14:35, Seun Ojedeji wrote:
On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model?
However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA.
Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications.
Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org> on behalf of Roelof Meijer <roelof.meijer@sidn.nl> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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-- ------------------------------------------------------------------------
/Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 //alt email:<http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>/
The key to understanding is humility - my view !
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Unincorporated associations in English, and Scottish law explicitly have unlimited liability. There is no registration involved, they simply exist as a matter of law. So if you and I formed a bridge club at our local pub, and invited members, that would automatically be a UA, would NOT have legal personality, and the members, and more particularly, the officers, would have UNlimited liabtliy The assets of the UA are held on trust, in the legal name of the officers, for the purposes of the UA. I am assuming the difference here is that a California unincorporated assocation is not an unregistered entity but is a creature of statute (state law), giving limited liability following a registration process. Is that correct? Nigel PS: I apologise for not having read every single email that was sent before I joined this list last week; as my law professor (a High Court judge said: "Nothing is obvious to everybody"). On 09/07/15 15:07, Greg Shatan wrote:
Nigel,
A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic.
Greg
On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-...
On 09/07/15 14:35, Seun Ojedeji wrote:
On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model?
However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA.
Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications.
Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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The key to understanding is humility - my view !
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One of the leading authorites on this matter, and the real dangers of UA structures is the Gillingham Bus Disaster case (RE GILLINGHAM BUS DISASTER FUND [1958] Ch 300) https://books.google.com/books?id=s5h4LUHhYC0C&pg=PA145&lpg=PA145&dq=Gilling... Happy reading. On 09/07/15 15:17, Nigel Roberts wrote:
Unincorporated associations in English, and Scottish law explicitly have unlimited liability. There is no registration involved, they simply exist as a matter of law. So if you and I formed a bridge club at our local pub, and invited members, that would automatically be a UA, would NOT have legal personality, and the members, and more particularly, the officers, would have UNlimited liabtliy
The assets of the UA are held on trust, in the legal name of the officers, for the purposes of the UA.
I am assuming the difference here is that a California unincorporated assocation is not an unregistered entity but is a creature of statute (state law), giving limited liability following a registration process.
Is that correct?
Nigel
PS: I apologise for not having read every single email that was sent before I joined this list last week; as my law professor (a High Court judge said: "Nothing is obvious to everybody").
On 09/07/15 15:07, Greg Shatan wrote:
Nigel,
A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic.
Greg
On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See
http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-...
On 09/07/15 14:35, Seun Ojedeji wrote:
On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model?
However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA.
Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications.
Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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The key to understanding is humility - my view !
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Hi Nigel, I'm in the U.K. and have raised the issue in the past, but only to suggest that because of this some SOAC's might want to consider the more complex formation of a PBC as an option going forward. You are correct about the status of UA's in the UK (Scotland as well as England and Wales - different legal system, as you know). The same holds true in Finland, the country where I received the bulk of my legal education. Over time, though, in both countries the courts would eventually recognise the liability protection afforded by California law as a matter of comity. Long term, I don't see a problem. That said, I'm pretty sure that were I to want to sue someone involved in a SOAC in the UK for actions of the SOAC I'd be able to get through a Directions Hearing and force a trial upon the other party. That's why indemnification is particularly important if UA's are used going forward. Might I also respectfully suggest that most of us are already part of UA's, albeit of the non registered variety. I would suspect I could make the case that the NCSG, NCUC and GNSO, all of which I'm active in, could currently be construed as UA's under British law and elsewhere and thus I could already be held liable for the actions of these organs. I don't see where any of the proposed structures would make my individual situation worse going forward. Kind Regards, Ed Morris On Thu, Jul 9, 2015 at 3:20 PM, Nigel Roberts <nigel@channelisles.net> wrote:
One of the leading authorites on this matter, and the real dangers of UA structures is the Gillingham Bus Disaster case (RE GILLINGHAM BUS DISASTER FUND [1958] Ch 300)
https://books.google.com/books?id=s5h4LUHhYC0C&pg=PA145&lpg=PA145&dq=Gilling...
Happy reading.
On 09/07/15 15:17, Nigel Roberts wrote:
Unincorporated associations in English, and Scottish law explicitly have unlimited liability. There is no registration involved, they simply exist as a matter of law. So if you and I formed a bridge club at our local pub, and invited members, that would automatically be a UA, would NOT have legal personality, and the members, and more particularly, the officers, would have UNlimited liabtliy
The assets of the UA are held on trust, in the legal name of the officers, for the purposes of the UA.
I am assuming the difference here is that a California unincorporated assocation is not an unregistered entity but is a creature of statute (state law), giving limited liability following a registration process.
Is that correct?
Nigel
PS: I apologise for not having read every single email that was sent before I joined this list last week; as my law professor (a High Court judge said: "Nothing is obvious to everybody").
On 09/07/15 15:07, Greg Shatan wrote:
Nigel,
A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic.
Greg
On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See
http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-...
On 09/07/15 14:35, Seun Ojedeji wrote:
On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model?
However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA.
Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications.
Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>>, "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-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org>" <avri@acm.org <mailto:avri@acm.org>> Date: woensdag 22 april 2015 15:09 To: "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-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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The key to understanding is humility - my view !
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Very interesting and helpful comments. Here's where I am at. I was, for about four years, a Board Member of a non-profit, ICANN-like organisation in the UK. (The Radio Society of Great Britain -- see www.rsgb.org). That was originally founded by some bloke named Marconi, and some of his chums in 1913, but it was incorporated as a company Limited by Guarantee in the 1920s, which it remains this day. The liability of each member (there are no shareholders) is limited to an amount that is set in the Articles. In the case of very old organisations like this, it's just one pound!. The Members control the board by election, and the Board, just like the ICANN Board, has a fiduciary duty. Now, I'm NOT suggesting that individual SOs establish themselves under English or Scottish law as this sort of incorporated non-profit (which is PARTICULARLY suited to a membership model), nor indeed as the more modern Community Interest Company (CIC). But what I'm saying is that my instincts, as shown by Edward's very scary but accurate scenario, are to avoid woolly, inchoate, structures and prefer well-defined (and, to be honest, inexpensive) formal structures such are provided for in the law of most European states. My two eurocents. On 09/07/15 16:15, Edward Morris wrote:
Hi Nigel,
I'm in the U.K. and have raised the issue in the past, but only to suggest that because of this some SOAC's might want to consider the more complex formation of a PBC as an option going forward.
You are correct about the status of UA's in the UK (Scotland as well as England and Wales - different legal system, as you know). The same holds true in Finland, the country where I received the bulk of my legal education. Over time, though, in both countries the courts would eventually recognise the liability protection afforded by California law as a matter of comity. Long term, I don't see a problem. That said, I'm pretty sure that were I to want to sue someone involved in a SOAC in the UK for actions of the SOAC I'd be able to get through a Directions Hearing and force a trial upon the other party. That's why indemnification is particularly important if UA's are used going forward.
Might I also respectfully suggest that most of us are already part of UA's, albeit of the non registered variety. I would suspect I could make the case that the NCSG, NCUC and GNSO, all of which I'm active in, could currently be construed as UA's under British law and elsewhere and thus I could already be held liable for the actions of these organs. I don't see where any of the proposed structures would make my individual situation worse going forward.
Kind Regards,
Ed Morris
On Thu, Jul 9, 2015 at 3:20 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
One of the leading authorites on this matter, and the real dangers of UA structures is the Gillingham Bus Disaster case (RE GILLINGHAM BUS DISASTER FUND [1958] Ch 300)
https://books.google.com/books?id=s5h4LUHhYC0C&pg=PA145&lpg=PA145&dq=Gilling...
Happy reading.
On 09/07/15 15:17, Nigel Roberts wrote:
Unincorporated associations in English, and Scottish law explicitly have unlimited liability. There is no registration involved, they simply exist as a matter of law. So if you and I formed a bridge club at our local pub, and invited members, that would automatically be a UA, would NOT have legal personality, and the members, and more particularly, the officers, would have UNlimited liabtliy
The assets of the UA are held on trust, in the legal name of the officers, for the purposes of the UA.
I am assuming the difference here is that a California unincorporated assocation is not an unregistered entity but is a creature of statute (state law), giving limited liability following a registration process.
Is that correct?
Nigel
PS: I apologise for not having read every single email that was sent before I joined this list last week; as my law professor (a High Court judge said: "Nothing is obvious to everybody").
On 09/07/15 15:07, Greg Shatan wrote:
Nigel,
A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic.
Greg
On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net> <mailto:nigel@channelisles.net <mailto:nigel@channelisles.net>>> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See
http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-...
On 09/07/15 14:35, Seun Ojedeji wrote:
On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model?
However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA.
Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications.
Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl> <mailto:Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>>> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>
<mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl> <mailto:roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>" <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>>,
"accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>"
<accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>" <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>"
<accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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email:<http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng> <mailto:seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>> <mailto:seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng> <mailto:seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>>>/
The key to understanding is humility - my view !
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I don't think anyone has suggested any "wooly, inchoate structures," in the event that SO/AC's may elect to create, become or empower a legal entity. First, it has generally been discussed that each SO/AC would be free to choose the place and type of entity should they elect the legal entity route. Second, the structures discussed have included: 1. California Unincorporated Association 2. Nonprofit Corporation (which could be established in any US state, including without limitation California, and also has equivalents in many (if not most) non-US jurisdictions) 3. Limited Liability Company (ditto) These all seem non-wooly and "choate" to me. Greg On Thu, Jul 9, 2015 at 12:21 PM, Nigel Roberts <nigel@channelisles.net> wrote:
Very interesting and helpful comments.
Here's where I am at. I was, for about four years, a Board Member of a non-profit, ICANN-like organisation in the UK. (The Radio Society of Great Britain -- see www.rsgb.org).
That was originally founded by some bloke named Marconi, and some of his chums in 1913, but it was incorporated as a company Limited by Guarantee in the 1920s, which it remains this day.
The liability of each member (there are no shareholders) is limited to an amount that is set in the Articles. In the case of very old organisations like this, it's just one pound!.
The Members control the board by election, and the Board, just like the ICANN Board, has a fiduciary duty.
Now, I'm NOT suggesting that individual SOs establish themselves under English or Scottish law as this sort of incorporated non-profit (which is PARTICULARLY suited to a membership model), nor indeed as the more modern Community Interest Company (CIC).
But what I'm saying is that my instincts, as shown by Edward's very scary but accurate scenario, are to avoid woolly, inchoate, structures and prefer well-defined (and, to be honest, inexpensive) formal structures such are provided for in the law of most European states.
My two eurocents.
On 09/07/15 16:15, Edward Morris wrote:
Hi Nigel,
I'm in the U.K. and have raised the issue in the past, but only to suggest that because of this some SOAC's might want to consider the more complex formation of a PBC as an option going forward.
You are correct about the status of UA's in the UK (Scotland as well as England and Wales - different legal system, as you know). The same holds true in Finland, the country where I received the bulk of my legal education. Over time, though, in both countries the courts would eventually recognise the liability protection afforded by California law as a matter of comity. Long term, I don't see a problem. That said, I'm pretty sure that were I to want to sue someone involved in a SOAC in the UK for actions of the SOAC I'd be able to get through a Directions Hearing and force a trial upon the other party. That's why indemnification is particularly important if UA's are used going forward.
Might I also respectfully suggest that most of us are already part of UA's, albeit of the non registered variety. I would suspect I could make the case that the NCSG, NCUC and GNSO, all of which I'm active in, could currently be construed as UA's under British law and elsewhere and thus I could already be held liable for the actions of these organs. I don't see where any of the proposed structures would make my individual situation worse going forward.
Kind Regards,
Ed Morris
On Thu, Jul 9, 2015 at 3:20 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
One of the leading authorites on this matter, and the real dangers of UA structures is the Gillingham Bus Disaster case (RE GILLINGHAM BUS DISASTER FUND [1958] Ch 300)
https://books.google.com/books?id=s5h4LUHhYC0C&pg=PA145&lpg=PA145&dq=Gilling...
Happy reading.
On 09/07/15 15:17, Nigel Roberts wrote:
Unincorporated associations in English, and Scottish law explicitly have unlimited liability. There is no registration involved, they simply exist as a matter of law. So if you and I formed a bridge club at our local pub, and invited members, that would automatically be a UA, would NOT have legal personality, and the members, and more particularly, the officers, would have UNlimited liabtliy
The assets of the UA are held on trust, in the legal name of the officers, for the purposes of the UA.
I am assuming the difference here is that a California unincorporated assocation is not an unregistered entity but is a creature of statute (state law), giving limited liability following a registration process.
Is that correct?
Nigel
PS: I apologise for not having read every single email that was sent before I joined this list last week; as my law professor (a High Court judge said: "Nothing is obvious to everybody").
On 09/07/15 15:07, Greg Shatan wrote:
Nigel,
A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic.
Greg
On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net> <mailto:nigel@channelisles.net
<mailto:nigel@channelisles.net>>> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See
http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-...
On 09/07/15 14:35, Seun Ojedeji wrote:
On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model?
However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA.
Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications.
Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com
<mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl> <mailto:Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>>> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>
<mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> on behalf of Roelof Meijer <roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl> <mailto:roelof.meijer@sidn.nl <mailto:roelof.meijer@sidn.nl>>> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>" <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>>,
"accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>"
<accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>>> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> Organization: Technicalities Reply-To: "avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>" <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>"
<accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org
<mailto:accountability-cross-community@icann.org>>> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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/Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 <tel:%2B2348035233535> <tel:%2B2348035233535> //alt
email:<http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng> <mailto:seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>> <mailto:seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng> <mailto:seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>>>/
The key to understanding is humility - my view !
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Dear Co-Chairs, I most certainly don't see the UA happen, in particular as far as ccTLDs are concerned, but Auntie Google reveals: http://law.justia.com/codes/california/2011/corp/title-3/18250-18270/18270/ reads 2011 California Code Corporations Code TITLE 3. UNINCORPORATED ASSOCIATIONS [18000 - 24001.5] CHAPTER 5. Liability and Enforcement of Judgments Section 18270 [...] (a) A judgment creditor of a member, director, officer, or agent of an unincorporated association may not levy execution against the assets of the member, director, officer, or agent to satisfy a judgment based on a claim against the unincorporated association unless a judgment based on the same claim has been obtained against the unincorporated association and any of the following conditions is satisfied: (1) A writ of execution on the judgment against the unincorporated association has been returned unsatisfied in whole or in part. (2) The unincorporated association is a debtor in bankruptcy. (3) The member, director, officer, or agent has agreed that the creditor need not exhaust the assets of the unincorporated association. (4) A court grants permission to the judgment creditor to levy execution against the assets of a member, director, officer, or agent based on a finding that the assets of the unincorporated association subject to execution are clearly insufficient to satisfy the judgment, that exhaustion of the assets of the unincorporated association is excessively burdensome, or that the grant of permission is an appropriate exercise of the court s equitable powers. [...] As the UAs will not have any or much assets, (a)(1) and/or (a)(4) are not very high hurdles... el On 2015-07-09 15:07, Greg Shatan wrote:
Nigel,
A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic.
Greg
On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-... [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
I don't see limited liability in that statute - quite the reverse in fact. Greg: can you please take me to authority regarding the limited liability provisions to which you referred?? On 09/07/15 15:40, Dr Eberhard Lisse wrote:
Dear Co-Chairs,
I most certainly don't see the UA happen, in particular as far as ccTLDs are concerned, but Auntie Google reveals:
http://law.justia.com/codes/california/2011/corp/title-3/18250-18270/18270/
reads
2011 California Code Corporations Code TITLE 3. UNINCORPORATED ASSOCIATIONS [18000 - 24001.5] CHAPTER 5. Liability and Enforcement of Judgments Section 18270
[...]
(a) A judgment creditor of a member, director, officer, or agent of an unincorporated association may not levy execution against the assets of the member, director, officer, or agent to satisfy a judgment based on a claim against the unincorporated association unless a judgment based on the same claim has been obtained against the unincorporated association and any of the following conditions is satisfied:
(1) A writ of execution on the judgment against the unincorporated association has been returned unsatisfied in whole or in part.
(2) The unincorporated association is a debtor in bankruptcy.
(3) The member, director, officer, or agent has agreed that the creditor need not exhaust the assets of the unincorporated association.
(4) A court grants permission to the judgment creditor to levy execution against the assets of a member, director, officer, or agent based on a finding that the assets of the unincorporated association subject to execution are clearly insufficient to satisfy the judgment, that exhaustion of the assets of the unincorporated association is excessively burdensome, or that the grant of permission is an appropriate exercise of the court s equitable powers.
[...]
As the UAs will not have any or much assets, (a)(1) and/or (a)(4) are not very high hurdles...
el
On 2015-07-09 15:07, Greg Shatan wrote:
Nigel,
A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic.
Greg
On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-... [...]
-- The Directors, Omadhina Internet Services Ltd. Registered in Alderney, C.I. Reg'd No. 1770 Office: 4&5 St Anne's Walk, Alderney GY9 3JZ Tel. 01481 520618 Email: directors@omadhina.net
I don't see limited liability in that statute - quite the reverse in fact. Greg: can you please take me to authority regarding the limited liability provisions to which you referred??
On 09/07/15 15:40, Dr Eberhard Lisse wrote:
Dear Co-Chairs,
I most certainly don't see the UA happen, in particular as far as ccTLDs are concerned, but Auntie Google reveals:
http://law.justia.com/codes/california/2011/corp/title-3/18250-18270/18270/
reads
2011 California Code Corporations Code TITLE 3. UNINCORPORATED ASSOCIATIONS [18000 - 24001.5] CHAPTER 5. Liability and Enforcement of Judgments Section 18270
[...]
(a) A judgment creditor of a member, director, officer, or agent of an unincorporated association may not levy execution against the assets of the member, director, officer, or agent to satisfy a judgment based on a claim against the unincorporated association unless a judgment based on the same claim has been obtained against the unincorporated association and any of the following conditions is satisfied:
(1) A writ of execution on the judgment against the unincorporated association has been returned unsatisfied in whole or in part.
(2) The unincorporated association is a debtor in bankruptcy.
(3) The member, director, officer, or agent has agreed that the creditor need not exhaust the assets of the unincorporated association.
(4) A court grants permission to the judgment creditor to levy execution against the assets of a member, director, officer, or agent based on a finding that the assets of the unincorporated association subject to execution are clearly insufficient to satisfy the judgment, that exhaustion of the assets of the unincorporated association is excessively burdensome, or that the grant of permission is an appropriate exercise of the court s equitable powers.
[...]
As the UAs will not have any or much assets, (a)(1) and/or (a)(4) are not very high hurdles...
el
On 2015-07-09 15:07, Greg Shatan wrote:
Nigel,
A California unincorporated association is a limited liability vehicle, as it is in certain other jurisdictions. If we were to go down the route of have SO/ACs be/create/empower (three different options) a legal entity, one would expect a choice to be made that would shield SO/ACs and their members from unlimited legal liability (and there are a variety of options to do so). While this should be implicit by now in this discussion, since it has been explicitly discussed in the past, I'm glad for the opportunity to make it explicit once again. Suggesting someone cross the street is not equivalent to telling them to walk into traffic.
Greg
On Thu, Jul 9, 2015 at 9:40 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Greg, all
I have a deadly serious question.
Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability?
So why is anyone even considering UA status for more than 10 seconds?
Nigel
See
http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-...
[...]
In California the unincorporated association form provides protection to participants from liability. There is a legal memo from pre- Buenos Aires that addresses. Sent with Good (www.good.com) ________________________________ From: accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts Sent: Thursday, July 09, 2015 08:40:38 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] member organization and single membership structure Greg, all I have a deadly serious question. Why would any Member of an SO voluntarily submit to the danger of unlimited monetary liability? So why is anyone even considering UA status for more than 10 seconds? Nigel See http://www.scvo.org.uk/setting-up-a-charity/decide-on-a-structure/voluntary-... On 09/07/15 14:35, Seun Ojedeji wrote:
On Thu, Jul 9, 2015 at 1:34 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Seun,
Can you point where this understanding and learning comes from? I don't think any of this is correct, unless you are referring to a "council" where each SO/AC is a statutory member of the corporation.
Yes indeed thats what i was referring to
This is not the case in the "single member model," where there is only one statutory member.
Okay thanks for clarifying that for me. So if i get this correctly; does it mean one of the SO/AC will be a member and then every other SO and AC exercise their powers through that single member?. Specifically which of the SO/AC will be member in the single member model?
However if one of the SO/AC won't have to become a member but the entire council becoming a UA to fulfill membership requirement, how will that address some SO/AC not wanting to enter into such legal formality? also how will accountability of the council be ensured as it could then mean creating a mini-ICANN board as the council members would have the voting rights, independence et all. Perhaps the council can be limited by its governing document, but how will removing council members for instance be in effect if the populating source(SO/AC) is not a UA.
Perhaps its not as complicated as i am imagining it so it will be good to hear some clarifications.
Regards
Greg
On Thursday, July 9, 2015, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
I understand the powers would be bestowed on the council individuals and not their source position;
For instance one of the option is to populate the community council with leaders of SO/AC, which IMO would be the cheapest route in this model so they would be occupying a virtual seat and exercise those powers when required. It would also allow the various SO/AC internet accountability mechanisms apply to council including removal of members.
However, I then learnt that the council cannot be formed by SO/AC leader positions but rather to the occupants of that position. This would mean having to rewrite the bylaw/document forming the council often since leaders of those positions are dynamic and could change at anytime. Will be good to know if that is no longer the case
Regards Sent from Google nexus 4 kindly excuse brevity and typos.
On 7 Jul 2015 2:56 pm, "Roelof Meijer" <Roelof.Meijer@sidn.nl> wrote:
Interesting, we’re back on the subject of a single member structure. It was written off before
Cheers,
Roelof
From: <accountability-cross-community-bounces@icann.org> on behalf of Roelof Meijer <roelof.meijer@sidn.nl> Date: woensdag 22 april 2015 15:56 To: "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi Avri,
The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).
And I would think it would enable the SO’s and AC’s themselves to continue appointing directors, as they do now. But that’s just guessing, based on the fact that the SO’s and AC’s themselves would not change status
Best,
Roelof
From: Avri Doria <avri@acm.org> Organization: Technicalities Reply-To: "avri@acm.org" <avri@acm.org> Date: woensdag 22 april 2015 15:09 To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] member organization and single membership structure
Hi,
On 22-Apr-15 08:26, Roelof Meijer wrote:
2) What I find quite frustrating is that I have raised the point of the possibility (or not) of a single membership structure – an option mentioned by Sidley and Adler & Colving in their legal advice – several times by now without getting any substantial reaction. I am not aware that any serious effort to investigate this has led to a formal write-off.
In some way that might lessen the complexity of making most SOAC an individual legal entity.
How would it work? Would we continue to appoint Directors just as we do now?
Or would there need to be some sort of Members Council that took actions, working simliarly to the the executive board or community council idea?
thanks
avri
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Holly, can you please point to the link or the subject line for ease of reference? el On 2015-07-09 15:51, Gregory, Holly wrote:
In California the unincorporated association form provides protection to participants from liability. There is a legal memo from pre- Buenos Aires that addresses. [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Will do shortly. Sent with Good (www.good.com) ________________________________ From: accountability-cross-community-bounces@icann.org on behalf of Dr Eberhard Lisse Sent: Thursday, July 09, 2015 10:21:44 AM To: accountability-cross-community@icann.org Cc: directors@omadhina.net Subject: Re: [CCWG-ACCT] member organization and single membership structure Holly, can you please point to the link or the subject line for ease of reference? el On 2015-07-09 15:51, Gregory, Holly wrote:
In California the unincorporated association form provides protection to participants from liability. There is a legal memo from pre- Buenos Aires that addresses. [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
I believe it was in the revised memo on unincorporated associations here: https://community.icann.org/download/attachments/52890082/REVISED%20memo%20o... -James From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Gregory, Holly Sent: Thursday, July 09, 2015 4:59 PM To: el@lisse.NA; accountability-cross-community@icann.org Cc: directors@omadhina.net; Rosemary E. Fei Subject: Re: [CCWG-ACCT] member organization and single membership structure Will do shortly. Sent with Good (www.good.com<http://www.good.com>) ________________________________ From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Dr Eberhard Lisse Sent: Thursday, July 09, 2015 10:21:44 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Cc: directors@omadhina.net<mailto:directors@omadhina.net> Subject: Re: [CCWG-ACCT] member organization and single membership structure Holly, can you please point to the link or the subject line for ease of reference? el On 2015-07-09 15:51, Gregory, Holly wrote:
In California the unincorporated association form provides protection to participants from liability. There is a legal memo from pre- Buenos Aires that addresses. [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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 **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
I have read that now. The question that does not appear to have been not answer, or even asked in that Membe, seems to be: "Does a Unincorporated Association have Limited Liability? More specifically, in what cirumstances may the members or offices of the UA be held responsible for the debts, money judgments or other pecuniary liabilities of the UA if the UA does not have the resources to pay them." I think the answer to this has already been given, earlier, and by construing those clauses, it seems thams that officers and members have unlimited personal liability if the Association cannot pay. (If I am wrong in that conclusion, please provide the section number of the relevant statute that confers Limited Liability protection on members and officers) On 09/07/15 17:23, James Gannon wrote:
I believe it was in the revised memo on unincorporated associations here: https://community.icann.org/download/attachments/52890082/REVISED%20memo%20o...
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Gregory, Holly *Sent:* Thursday, July 09, 2015 4:59 PM *To:* el@lisse.NA; accountability-cross-community@icann.org *Cc:* directors@omadhina.net; Rosemary E. Fei *Subject:* Re: [CCWG-ACCT] member organization and single membership structure
Will do shortly.
Sent with Good (www.good.com <http://www.good.com>)**
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*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Dr Eberhard Lisse *Sent:* Thursday, July 09, 2015 10:21:44 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Cc:* directors@omadhina.net <mailto:directors@omadhina.net> *Subject:* Re: [CCWG-ACCT] member organization and single membership structure
Holly,
can you please point to the link or the subject line for ease of reference?
el
On 2015-07-09 15:51, Gregory, Holly wrote:
In California the unincorporated association form provides protection to participants from liability. There is a legal memo from pre- Buenos Aires that addresses. [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA <mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
Cal. Corp. Code 18605 provides " A member, director, or agent of a nonprofit association is not liable for a debt, obligation, or liability of the association solely by reason of being a member, director, officer, or agent." - See more at: http://codes.lp.findlaw.com/cacode/CORP/1/3/2/1/s18605#sthash.PmFUuWIp.dpuf This is part of Title 3 applying to unincorporated associations, A non profit UA (which is what this organization would be) is covered by this law ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 -----Original Message----- From: Nigel Roberts [mailto:nigel@channelisles.net] Sent: Thursday, July 9, 2015 12:53 PM To: James Gannon Cc: accountability-cross-community@icann.org; Rosemary E. Fei Subject: Re: [CCWG-ACCT] member organization and single membership structure I have read that now. The question that does not appear to have been not answer, or even asked in that Membe, seems to be: "Does a Unincorporated Association have Limited Liability? More specifically, in what cirumstances may the members or offices of the UA be held responsible for the debts, money judgments or other pecuniary liabilities of the UA if the UA does not have the resources to pay them." I think the answer to this has already been given, earlier, and by construing those clauses, it seems thams that officers and members have unlimited personal liability if the Association cannot pay. (If I am wrong in that conclusion, please provide the section number of the relevant statute that confers Limited Liability protection on members and officers) On 09/07/15 17:23, James Gannon wrote:
I believe it was in the revised memo on unincorporated associations here: https://community.icann.org/download/attachments/52890082/REVISED%20me mo%20on%20unincorporated%20associations%20%2800673349-4xA3536%29%5B1%5 D.pdf?version=1&modificationDate=1430519890000&api=v2
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Gregory, Holly *Sent:* Thursday, July 09, 2015 4:59 PM *To:* el@lisse.NA; accountability-cross-community@icann.org *Cc:* directors@omadhina.net; Rosemary E. Fei *Subject:* Re: [CCWG-ACCT] member organization and single membership structure
Will do shortly.
Sent with Good (www.good.com <http://www.good.com>)**
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*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Dr Eberhard Lisse *Sent:* Thursday, July 09, 2015 10:21:44 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Cc:* directors@omadhina.net <mailto:directors@omadhina.net> *Subject:* Re: [CCWG-ACCT] member organization and single membership structure
Holly,
can you please point to the link or the subject line for ease of reference?
el
On 2015-07-09 15:51, Gregory, Holly wrote:
In California the unincorporated association form provides protection to participants from liability. There is a legal memo from pre- Buenos Aires that addresses. [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA <mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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
********************************************************************** ****************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
********************************************************************** ******************************
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Nigel, et al.: The language quoted was from the "General" section on Unincorporated Associations in the California Code. There is a specific section of the statute on "Nonprofit Associations," which sets out limited liability for members, director, officers and agents of nonprofit UAs as follows: 18605. A member, director, or agent of a nonprofit association is not liable for a debt, obligation, or liability of the association solely by reason of being a member, director, officer, or agent. 18610. A member of a nonprofit association is not liable for a contractual obligation of the association unless one of the following conditions is satisfied: (a) The member expressly assumes personal responsibility for the obligation in a signed writing that specifically identifies the obligation assumed. (b) The member expressly authorizes or ratifies the specific contract, as evidenced by a writing. This subdivision does not apply if the member authorizes or ratifies a contract solely in the member' s capacity as a director, officer, or agent of the association. (c) With notice of the contract, the member receives a benefit under the contract. Liability under this subdivision is limited to the value of the benefit received. (d) The member executes the contract without disclosing that the member is acting on behalf of the association. (e) The member executes the contract without authority to execute the contract. 18615. A director, officer, or agent of a nonprofit association is not liable for a contractual obligation of the association unless one of the following conditions is satisfied: (a) The director, officer, or agent expressly assumes responsibility for the obligation in a signed writing that specifically identifies the obligation assumed. (b) The director, officer, or agent executes the contract without disclosing that the director, officer, or agent is acting on behalf of the association. (c) The director, officer, or agent executes the contract without authority to execute the contract. 18620. (a) A member, director, officer, or agent of a nonprofit association shall be liable for injury, damage, or harm caused by an act or omission of the association or an act or omission of a director, officer, or agent of the association, if any of the following conditions is satisfied: (1) The member, director, officer, or agent expressly assumes liability for injury, damage, or harm caused by particular conduct and that conduct causes the injury, damage, or harm. (2) The member, director, officer, or agent engages in tortious conduct that causes the injury, damage, or harm. (3) The member, director, officer, or agent is otherwise liable under any other statute. (b) This section provides a nonexclusive list of existing grounds for liability, and does not foreclose any common law grounds for liability. On Thu, Jul 9, 2015 at 12:53 PM, Nigel Roberts <nigel@channelisles.net> wrote:
I have read that now.
The question that does not appear to have been not answer, or even asked in that Membe, seems to be:
"Does a Unincorporated Association have Limited Liability? More specifically, in what cirumstances may the members or offices of the UA be held responsible for the debts, money judgments or other pecuniary liabilities of the UA if the UA does not have the resources to pay them."
I think the answer to this has already been given, earlier, and by construing those clauses, it seems thams that officers and members have unlimited personal liability if the Association cannot pay.
(If I am wrong in that conclusion, please provide the section number of the relevant statute that confers Limited Liability protection on members and officers)
On 09/07/15 17:23, James Gannon wrote:
I believe it was in the revised memo on unincorporated associations here:
https://community.icann.org/download/attachments/52890082/REVISED%20memo%20o...
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Gregory, Holly *Sent:* Thursday, July 09, 2015 4:59 PM *To:* el@lisse.NA; accountability-cross-community@icann.org *Cc:* directors@omadhina.net; Rosemary E. Fei *Subject:* Re: [CCWG-ACCT] member organization and single membership structure
Will do shortly.
Sent with Good (www.good.com <http://www.good.com>)**
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*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Dr Eberhard Lisse *Sent:* Thursday, July 09, 2015 10:21:44 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Cc:* directors@omadhina.net <mailto:directors@omadhina.net> *Subject:* Re: [CCWG-ACCT] member organization and single membership structure
Holly,
can you please point to the link or the subject line for ease of reference?
el
On 2015-07-09 15:51, Gregory, Holly wrote:
In California the unincorporated association form provides protection to participants from liability. There is a legal memo from pre- Buenos Aires that addresses.
[...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA <mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Thank you [...] With regard to liability, members, officers and agents are not individually or personally liable for the association's debts or liabilities on the sole basis of their relationship with the association. [...] At present, the individuals bear personal liability for their actions. If the association were to be disregarded, they would still have the same personal liability for their actions. Thus, organizing the participants into an unincorporated association under California law would not make the participants worse off. [...] Never mind the double qualification in the first paragraph, this does not address liability (by UA members) for the UA's actions. Or am I missing something here? el On 2015-07-09 17:23, James Gannon wrote:
I believe it was in the revised memo on unincorporated associations here: https://community.icann.org/download/attachments/52890082/REVISED%20memo%20o...
-James [...]>
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
I just sent a response on this point Since these messages crossed in the ether, I'll quote the most relevant part: 18605. A member, director, or agent of a nonprofit association is not liable for a debt, obligation, or liability of the association solely by reason of being a member, director, officer, or agent. 18620. (a) A member, director, officer, or agent of a nonprofit association shall be liable for injury, damage, or harm caused by an act or omission of the association or an act or omission of a director, officer, or agent of the association, if any of the following conditions is satisfied: (1) The member, director, officer, or agent expressly assumes liability for injury, damage, or harm caused by particular conduct and that conduct causes the injury, damage, or harm. (2) The member, director, officer, or agent engages in tortious conduct that causes the injury, damage, or harm. (3) The member, director, officer, or agent is otherwise liable under any other statute. (b) This section provides a nonexclusive list of existing grounds for liability, and does not foreclose any common law grounds for liability. On Thu, Jul 9, 2015 at 1:24 PM, Dr Eberhard Lisse <el@lisse.na> wrote:
Thank you
[...]
With regard to liability, members, officers and agents are not individually or personally liable for the association's debts or liabilities on the sole basis of their relationship with the association.
[...]
At present, the individuals bear personal liability for their actions. If the association were to be disregarded, they would still have the same personal liability for their actions. Thus, organizing the participants into an unincorporated association under California law would not make the participants worse off.
[...]
Never mind the double qualification in the first paragraph, this does not address liability (by UA members) for the UA's actions.
Or am I missing something here?
el
On 2015-07-09 17:23, James Gannon wrote:
I believe it was in the revised memo on unincorporated associations here:
https://community.icann.org/download/attachments/52890082/REVISED%20memo%20o...
-James
[...]>
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Co-Chairs, I have further trimmed it to show that this is still not good enough. Other statutes? Current or future? Common Law liabilities? Don't see it happening. el On 2015-07-09 18:29, Greg Shatan wrote:
I just sent a response on this point Since these messages crossed in the ether, I'll quote the most relevant part:
[...]
(a) A member, director, officer, or agent of a nonprofit association shall be liable for injury, damage, or harm caused by an act or omission of the association or an act or omission of a director, officer, or agent of the association, if any of the following conditions is satisfied: [...] (3) The member, director, officer, or agent is otherwise liable under any other statute.
(b) This section provides a nonexclusive list of existing grounds for liability, and does not foreclose any common law grounds for liability.
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Eberhard I think what I'm looking to see is there, sort of. That's what the double negative means It comes across to me as rather weaker than the European idea of limited liability though. What it seems to be saying is, that if you are a member of an association, you are not liable unless the Claimant ("Plaintiff" in archaic) can show some additional reason why you should be. English (for example) associations and corporations explicitly state "the liability of the Members is Limited". No ifs/buts. So we are somewhere towards where I'd expect to be, but I don't see why you'd prefer to choose the tin version over the gold one. On 09/07/15 18:24, Dr Eberhard Lisse wrote:
Thank you
[...]
With regard to liability, members, officers and agents are not individually or personally liable for the association's debts or liabilities on the sole basis of their relationship with the association.
[...]
At present, the individuals bear personal liability for their actions. If the association were to be disregarded, they would still have the same personal liability for their actions. Thus, organizing the participants into an unincorporated association under California law would not make the participants worse off.
[...]
Never mind the double qualification in the first paragraph, this does not address liability (by UA members) for the UA's actions.
Or am I missing something here?
el
On 2015-07-09 17:23, James Gannon wrote:
I believe it was in the revised memo on unincorporated associations here: https://community.icann.org/download/attachments/52890082/REVISED%20memo%20o...
-James [...]>
participants (17)
-
Avri Doria -
Burr, Becky -
Dr Eberhard Lisse -
Edward Morris -
Greg Shatan -
Gregory, Holly -
James Gannon -
Jordan Carter -
Kavouss Arasteh -
Kieren McCarthy -
Malcolm Hutty -
Matthew Shears -
Nigel Roberts -
Omadhina Internet Services -
Paul Rosenzweig -
Roelof Meijer -
Seun Ojedeji