pending legal questions
Dear Co-Chairs, dear all I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply. All questions were refered to and posed during the CCWG call of March 31st: == - On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)? - question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated. - it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth == The references to legal memos in those questions should be understood as refering to the papers current on March 31st. Thank you very much for your assistance and best regards Jorge Cancio Switzerland Von meinem iPhone gesendet
Dear Jorge, Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you. I hope you find this information useful. A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community? 1. Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure: Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements. To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research. To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw. 2. Extra accountability mechanisms in other jurisdictions: As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question. B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California? 1. Liability of persons participating on proposed bodies: While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for example engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons – for examples members of a review panel, these same protections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability. 2. Supervisory boards: A two tier board structure – with of a supervisory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a “managing board” (but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards, León
El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch escribió:
Dear Co-Chairs, dear all
I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
All questions were refered to and posed during the CCWG call of March 31st:
==
- On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)?
- question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
- it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
==
The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
Thank you very much for your assistance and best regards
Jorge Cancio Switzerland
Von meinem iPhone gesendet
Dear Leon I have asked few questions for which no reply are yet provided?! Now , since last week , extensive discussions are on going on whether a membership approach is implementable without a need to UA? May you raise this issue to the legal council pls Regards Kavouss Sent from my iPhone
On 24 May 2015, at 02:21, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> wrote:
Dear Jorge,
Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you.
I hope you find this information useful.
A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community?
1. Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure: Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements.
To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research.
To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw.
2. Extra accountability mechanisms in other jurisdictions: As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question.
B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California?
1. Liability of persons participating on proposed bodies: While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for example engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons – for examples members of a review panel, these same protections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.
2. Supervisory boards: A two tier board structure – with of a supervisory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a “managing board” (but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards,
León
El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch escribió:
Dear Co-Chairs, dear all
I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
All questions were refered to and posed during the CCWG call of March 31st:
==
- On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)?
- question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
- it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
==
The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
Thank you very much for your assistance and best regards
Jorge Cancio Switzerland
Von meinem iPhone gesendet
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Kavouss, Thanks for your questions. At this stage, the advice from lawyers is that membership approach can be implementable in many ways. One being the establishment of UA but also any other kind of legal vehicle. The example mentioned has been a non-profit organization. I stress that this has just been used as an example and no one has suggested this approach as it has only been used to illustrate which other legal vehicles could be used to become a member. The bottom line is that to exercise certain powers as Board member removal and budget approval, there would be the need to have a legal vehicle (whatever legal vehicle) to implement the proposal. I hope you find this information useful. Please let me know if you need further clarification. Best regards, León
El 24/05/2015, a las 2:29, Kavouss Arasteh <kavouss.arasteh@gmail.com> escribió:
Dear Leon I have asked few questions for which no reply are yet provided?! Now , since last week , extensive discussions are on going on whether a membership approach is implementable without a need to UA? May you raise this issue to the legal council pls Regards Kavouss
Sent from my iPhone
On 24 May 2015, at 02:21, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> wrote:
Dear Jorge,
Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you.
I hope you find this information useful.
A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community?
1. Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure: Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements.
To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research.
To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw.
2. Extra accountability mechanisms in other jurisdictions: As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question.
B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California?
1. Liability of persons participating on proposed bodies: While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for example engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons – for examples members of a review panel, these same protections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.
2. Supervisory boards: A two tier board structure – with of a supervisory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a “managing board” (but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards,
León
El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> escribió:
Dear Co-Chairs, dear all
I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
All questions were refered to and posed during the CCWG call of March 31st:
==
- On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)?
- question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
- it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
==
The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
Thank you very much for your assistance and best regards
Jorge Cancio Switzerland
Von meinem iPhone gesendet
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Leon, at least from my point of view, I think the question is a bit more specific. We of course know that individuals have a legal persona and therefore could be Members (or Designators). The question is whether it is practical to structure things so that the SO/AC Chairs (or other individuals named by their office within the ICANN community (perhaps a Chair of a SG in the case of the GNSO) can be identified as Members and whoever the incumbent is in the office plays that role. Or if that is not possible, is there an easy easy to designate them (no pun intended) as Designators or Members when they assume office. And if some peron is playing that role, can they appoint someone else to act in that capacity in place of them. Alan At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote:
Dear Kavouss,
Thanks for your questions. At this stage, the advice from lawyers is that membership approach can be implementable in many ways. One being the establishment of UA but also any other kind of legal vehicle. The example mentioned has been a non-profit organization. I stress that this has just been used as an example and no one has suggested this approach as it has only been used to illustrate which other legal vehicles could be used to become a member.
The bottom line is that to exercise certain powers as Board member removal and budget approval, there would be the need to have a legal vehicle (whatever legal vehicle) to implement the proposal.
I hope you find this information useful. Please let me know if you need further clarification.
Best regards,
León
El 24/05/2015, a las 2:29, Kavouss Arasteh <<mailto:kavouss.arasteh@gmail.com>kavouss.arasteh@gmail.com> escribió:
Dear Leon I have asked few questions for which no reply are yet provided?! Now , since last week , extensive discussions are on going on whether a membership approach is implementable without a need to UA? May you raise this issue to the legal council pls Regards Kavouss
Sent from my iPhone
On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa <<mailto:leonfelipe@sanchez.mx>leonfelipe@sanchez.mx> wrote:
Dear Jorge,
Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you.
I hope you find this information useful.
A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANNâs structure? What extra accountability would changing jurisdiction bring to the community?
1. Addressing jurisdiction in articles and bylaws and whether possible under ICANNâs structure: Under concepts of state corporate law in the US, the entityâs articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the â internal affairs doctrineâ) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements.
To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research.
To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw.
2. Extra accountability mechanisms in other jurisdictions: As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question.
B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California?
1. Liability of persons participating on proposed bodies: While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance for exxample engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons for examples members of a review panel, these same prootections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.
2. Supervisory boards: A two tier board structure with of a supervisoory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a âmanaging boardâ (but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards,
León
El 23/05/2015, a las 1:22, <mailto:Jorge.Cancio@bakom.admin.ch>Jorge.Cancio@bakom.admin.ch escribió:
Dear Co-Chairs, dear all
I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
All questions were refered to and posed during the CCWG call of March 31st:
==
- On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)?
- question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
- it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
==
The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
Thank you very much for your assistance and best regards
Jorge Cancio Switzerland
Von meinem iPhone gesendet
_______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
It's a fair question to ask, regardless of whether one is an advocate for the idea: can we find a way for "natural persons" to be the members of ICANN, yet clearly only as "alter egos" to the SO/ACs and not in their own capacity? To my mind, the "natural person" would need to be expressly and solely serving in his or her capacity as a representative of the SO/AC by virtue of their position so that the "real" member was the SO/AC: e.g., "GNSO, by its chair Jonathan Robinson" That linkage needs to be explicitly and firmly established -- the idea that the community leaders would be the members seems a little odd. Clearly, membership meetings would not be freewheeling affairs, since the sole ability of the members-in-fact should be transmitting already decided positions of the SO/ACs. As such, any give and take regarding positions and concerns would need to take place within the community prior to a members meeting, rather than at a members meeting. On Sun, May 24, 2015 at 9:15 PM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
Leon, at least from my point of view, I think the question is a bit more specific. We of course know that individuals have a legal persona and therefore could be Members (or Designators).
The question is whether it is practical to structure things so that the SO/AC Chairs (or other individuals named by their office within the ICANN community (perhaps a Chair of a SG in the case of the GNSO) can be identified as Members and whoever the incumbent is in the office plays that role. Or if that is not possible, is there an easy easy to designate them (no pun intended) as Designators or Members when they assume office. And if some peron is playing that role, can they appoint someone else to act in that capacity in place of them.
Alan
At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote:
Dear Kavouss,
Thanks for your questions. At this stage, the advice from lawyers is that membership approach can be implementable in many ways. One being the establishment of UA but also any other kind of legal vehicle. The example mentioned has been a non-profit organization. I stress that this has just been used as an example and no one has suggested this approach as it has only been used to illustrate which other legal vehicles could be used to become a member.
The bottom line is that to exercise certain powers as Board member removal and budget approval, there would be the need to have a legal vehicle (whatever legal vehicle) to implement the proposal.
I hope you find this information useful. Please let me know if you need further clarification.
Best regards,
León
El 24/05/2015, a las 2:29, Kavouss Arasteh < kavouss.arasteh@gmail.com> escribió:
Dear Leon I have asked few questions for which no reply are yet provided?! Now , since last week , extensive discussions are on going on whether a membership approach is implementable without a need to UA? May you raise this issue to the legal council pls Regards Kavouss
Sent from my iPhone
On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa < leonfelipe@sanchez.mx> wrote:
Dear Jorge,
Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you.
I hope you find this information useful.
*A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community? * *1.* *Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure:* Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements.
To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research.
To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw.
*2. Extra accountability mechanisms in other jurisdictions:* As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question.
*B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California? 1. Liability of persons participating on proposed bodies:* While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for exxample engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons – for examples members of a review panel, these same prootections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.
* 2. Supervisory boards:* A two tier board structure – with of a supervisoory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a “managing board†(but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards,
León
El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch escribió:
Dear Co-Chairs, dear all
I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
All questions were refered to and posed during the CCWG call of March 31st:
==
- On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)?
- question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
- it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
==
The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
Thank you very much for your assistance and best regards
Jorge Cancio Switzerland
Von meinem iPhone gesendet
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Hello Alan, I think that individuals can certainly be members and exercise the right of members. I think you are asking for information on what legal mechanisms can be put in place to ensure that the member exercises they powers under direction of the associated SO/AC, and not of their own volition. Or put another way – how is the member held accountable to the appointing organization? Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Monday, 25 May 2015 11:16 AM To: León Felipe Sánchez AmbÃa; Kavouss Arasteh Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] pending legal questions Leon, at least from my point of view, I think the question is a bit more specific. We of course know that individuals have a legal persona and therefore could be Members (or Designators). The question is whether it is practical to structure things so that the SO/AC Chairs (or other individuals named by their office within the ICANN community (perhaps a Chair of a SG in the case of the GNSO) can be identified as Members and whoever the incumbent is in the office plays that role. Or if that is not possible, is there an easy easy to designate them (no pun intended) as Designators or Members when they assume office. And if some peron is playing that role, can they appoint someone else to act in that capacity in place of them. Alan At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote: Dear Kavouss, Thanks for your questions. At this stage, the advice from lawyers is that membership approach can be implementable in many ways. One being the establishment of UA but also any other kind of legal vehicle. The example mentioned has been a non-profit organization. I stress that this has just been used as an example and no one has suggested this approach as it has only been used to illustrate which other legal vehicles could be used to become a member. The bottom line is that to exercise certain powers as Board member removal and budget approval, there would be the need to have a legal vehicle (whatever legal vehicle) to implement the proposal. I hope you find this information useful. Please let me know if you need further clarification. Best regards, León El 24/05/2015, a las 2:29, Kavouss Arasteh < kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> escribió: Dear Leon I have asked few questions for which no reply are yet provided?! Now , since last week , extensive discussions are on going on whether a membership approach is implementable without a need to UA? May you raise this issue to the legal council pls Regards Kavouss Sent from my iPhone On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> wrote: Dear Jorge, Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you. I hope you find this information useful. A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community? 1. Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure: Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements. To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research. To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw. 2. Extra accountability mechanisms in other jurisdictions: As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question. B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California? 1. Liability of persons participating on proposed bodies: While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for exxample engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons – for examples members of a review panel, these same prootections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability. 2. Supervisory boards: A two tier board structure – with of a supervisoory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a “managing board†(but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards, León El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> escribió: Dear Co-Chairs, dear all I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply. All questions were refered to and posed during the CCWG call of March 31st: == - On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)? - question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated. - it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth == The references to legal memos in those questions should be understood as refering to the papers current on March 31st. Thank you very much for your assistance and best regards Jorge Cancio Switzerland Von meinem iPhone gesendet _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Tue, May 26, 2015 at 6:20 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
...... Or put another way – how is the member held accountable to the appointing organization?
Good question, another question from me is "whether the membership can be tied to the position and not the person". i.e Is it possible to recognise the Chair of SO/AC as the members? if yes, i think that would make whatever accountability mechanism within the SO/AC applicable on their member representative; Like the various SO/AC would be able to replace their Chair (as they would have normally done) if they find him/her no longer operating by their guidelines Regards
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Alan Greenberg *Sent:* Monday, 25 May 2015 11:16 AM *To:* León Felipe Sánchez AmbÃa; Kavouss Arasteh *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] pending legal questions
Leon, at least from my point of view, I think the question is a bit more specific. We of course know that individuals have a legal persona and therefore could be Members (or Designators).
The question is whether it is practical to structure things so that the SO/AC Chairs (or other individuals named by their office within the ICANN community (perhaps a Chair of a SG in the case of the GNSO) can be identified as Members and whoever the incumbent is in the office plays that role. Or if that is not possible, is there an easy easy to designate them (no pun intended) as Designators or Members when they assume office. And if some peron is playing that role, can they appoint someone else to act in that capacity in place of them.
Alan
At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote:
Dear Kavouss,
Thanks for your questions. At this stage, the advice from lawyers is that membership approach can be implementable in many ways. One being the establishment of UA but also any other kind of legal vehicle. The example mentioned has been a non-profit organization. I stress that this has just been used as an example and no one has suggested this approach as it has only been used to illustrate which other legal vehicles could be used to become a member.
The bottom line is that to exercise certain powers as Board member removal and budget approval, there would be the need to have a legal vehicle (whatever legal vehicle) to implement the proposal.
I hope you find this information useful. Please let me know if you need further clarification.
Best regards,
León
El 24/05/2015, a las 2:29, Kavouss Arasteh < kavouss.arasteh@gmail.com> escribió:
Dear Leon I have asked few questions for which no reply are yet provided?! Now , since last week , extensive discussions are on going on whether a membership approach is implementable without a need to UA? May you raise this issue to the legal council pls Regards Kavouss
Sent from my iPhone
On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa < leonfelipe@sanchez.mx> wrote:
Dear Jorge,
Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you.
I hope you find this information useful.
*A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community? * *1.* *Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure:* Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements.
To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research.
To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw.
*2. Extra accountability mechanisms in other jurisdictions:* As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question.
*B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California? 1. Liability of persons participating on proposed bodies:* While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for exxample engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons – for examples members of a review panel, these same prootections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.
* 2. Supervisory boards:* A two tier board structure – with of a supervisoory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a “managing board†(but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards,
León
El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch escribió:
Dear Co-Chairs, dear all
I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
All questions were refered to and posed during the CCWG call of March 31st:
==
- On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)?
- question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
- it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
==
The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
Thank you very much for your assistance and best regards
Jorge Cancio Switzerland
Von meinem iPhone gesendet
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ------------------------------------------------------------------------ *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 !
I think it is always best to institutionalize membership that way by laws have room to operate since we are dealing with an entity as opposed to when the same is personalized which allows room for feelings to operate. On 5/26/15, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On Tue, May 26, 2015 at 6:20 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
...... Or put another way – how is the member held accountable to the appointing organization?
Good question, another question from me is "whether the membership can be tied to the position and not the person". i.e Is it possible to recognise the Chair of SO/AC as the members? if yes, i think that would make whatever accountability mechanism within the SO/AC applicable on their member representative; Like the various SO/AC would be able to replace their Chair (as they would have normally done) if they find him/her no longer operating by their guidelines
Regards
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Alan Greenberg *Sent:* Monday, 25 May 2015 11:16 AM *To:* León Felipe Sánchez AmbÃa; Kavouss Arasteh *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] pending legal questions
Leon, at least from my point of view, I think the question is a bit more specific. We of course know that individuals have a legal persona and therefore could be Members (or Designators).
The question is whether it is practical to structure things so that the SO/AC Chairs (or other individuals named by their office within the ICANN community (perhaps a Chair of a SG in the case of the GNSO) can be identified as Members and whoever the incumbent is in the office plays that role. Or if that is not possible, is there an easy easy to designate them (no pun intended) as Designators or Members when they assume office. And if some peron is playing that role, can they appoint someone else to act in that capacity in place of them.
Alan
At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote:
Dear Kavouss,
Thanks for your questions. At this stage, the advice from lawyers is that membership approach can be implementable in many ways. One being the establishment of UA but also any other kind of legal vehicle. The example mentioned has been a non-profit organization. I stress that this has just been used as an example and no one has suggested this approach as it has only been used to illustrate which other legal vehicles could be used to become a member.
The bottom line is that to exercise certain powers as Board member removal and budget approval, there would be the need to have a legal vehicle (whatever legal vehicle) to implement the proposal.
I hope you find this information useful. Please let me know if you need further clarification.
Best regards,
León
El 24/05/2015, a las 2:29, Kavouss Arasteh < kavouss.arasteh@gmail.com> escribió:
Dear Leon I have asked few questions for which no reply are yet provided?! Now , since last week , extensive discussions are on going on whether a membership approach is implementable without a need to UA? May you raise this issue to the legal council pls Regards Kavouss
Sent from my iPhone
On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa < leonfelipe@sanchez.mx> wrote:
Dear Jorge,
Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you.
I hope you find this information useful.
*A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community? * *1.* *Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure:* Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements.
To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research.
To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw.
*2. Extra accountability mechanisms in other jurisdictions:* As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question.
*B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California? 1. Liability of persons participating on proposed bodies:* While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for exxample engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons – for examples members of a review panel, these same prootections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.
* 2. Supervisory boards:* A two tier board structure – with of a supervisoory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a “managing board†(but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards,
León
El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch escribió:
Dear Co-Chairs, dear all
I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
All questions were refered to and posed during the CCWG call of March 31st:
==
- On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)?
- question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
- it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
==
The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
Thank you very much for your assistance and best regards
Jorge Cancio Switzerland
Von meinem iPhone gesendet
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ------------------------------------------------------------------------
*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 !
-- Barrack O. Otieno +254721325277 +254-20-2498789 Skype: barrack.otieno http://www.otienobarrack.me.ke/
Dear Leon Dear other Co-chairs Dear Colleagues
From the e-mail discussions, I recognized that the matter of Member Model with or without UA and various options to do so is still unclear for many When therre are more than 150 e-m,ailé exchanged in which the issue was addressed from various angle It means that there are issues to be addressed May I respectfully suggest that include the matter in today's agenda Kavouss
2015-05-26 8:37 GMT+02:00 Barrack Otieno <otieno.barrack@gmail.com>:
I think it is always best to institutionalize membership that way by laws have room to operate since we are dealing with an entity as opposed to when the same is personalized which allows room for feelings to operate.
On 5/26/15, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On Tue, May 26, 2015 at 6:20 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
...... Or put another way – how is the member held accountable to the appointing organization?
Good question, another question from me is "whether the membership can be tied to the position and not the person". i.e Is it possible to recognise the Chair of SO/AC as the members? if yes, i think that would make whatever accountability mechanism within the SO/AC applicable on their member representative; Like the various SO/AC would be able to replace their Chair (as they would have normally done) if they find him/her no longer operating by their guidelines
Regards
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Alan Greenberg *Sent:* Monday, 25 May 2015 11:16 AM *To:* León Felipe Sánchez AmbÃa; Kavouss Arasteh *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] pending legal questions
Leon, at least from my point of view, I think the question is a bit more specific. We of course know that individuals have a legal persona and therefore could be Members (or Designators).
The question is whether it is practical to structure things so that the SO/AC Chairs (or other individuals named by their office within the
ICANN
community (perhaps a Chair of a SG in the case of the GNSO) can be identified as Members and whoever the incumbent is in the office plays that role. Or if that is not possible, is there an easy easy to designate them (no pun intended) as Designators or Members when they assume office. And if some peron is playing that role, can they appoint someone else to act in that capacity in place of them.
Alan
At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote:
Dear Kavouss,
Thanks for your questions. At this stage, the advice from lawyers is that membership approach can be implementable in many ways. One being the establishment of UA but also any other kind of legal vehicle. The example mentioned has been a non-profit organization. I stress that this has just been used as an example and no one has suggested this approach as it has only been used to illustrate which other legal vehicles could be used to become a member.
The bottom line is that to exercise certain powers as Board member removal and budget approval, there would be the need to have a legal vehicle (whatever legal vehicle) to implement the proposal.
I hope you find this information useful. Please let me know if you need further clarification.
Best regards,
León
El 24/05/2015, a las 2:29, Kavouss Arasteh < kavouss.arasteh@gmail.com
escribió:
Dear Leon I have asked few questions for which no reply are yet provided?! Now , since last week , extensive discussions are on going on whether a membership approach is implementable without a need to UA? May you raise this issue to the legal council pls Regards Kavouss
Sent from my iPhone
On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa < leonfelipe@sanchez.mx> wrote:
Dear Jorge,
Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you.
I hope you find this information useful.
*A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN’s structure? What extra accountability would changing jurisdiction bring to the community? * *1.* *Addressing jurisdiction in articles and bylaws and whether possible under ICANN’s structure:* Under concepts of state corporate law in the US, the entity’s articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the “ internal affairs doctrine“) . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements.
To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research.
To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw.
*2. Extra accountability mechanisms in other jurisdictions:* As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question.
*B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California? 1. Liability of persons participating on proposed bodies:* While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for exxample engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons – for examples members of a review panel, these same prootections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.
* 2. Supervisory boards:* A two tier board structure – with of a supervisoory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a “managing board†(but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards,
León
El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch escribió:
Dear Co-Chairs, dear all
I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply.
All questions were refered to and posed during the CCWG call of March 31st:
==
- On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)?
- question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated.
- it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth
==
The references to legal memos in those questions should be understood as refering to the papers current on March 31st.
Thank you very much for your assistance and best regards
Jorge Cancio Switzerland
Von meinem iPhone gesendet
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ------------------------------------------------------------------------
*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 !
-- Barrack O. Otieno +254721325277 +254-20-2498789 Skype: barrack.otieno http://www.otienobarrack.me.ke/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Kavouss, Dear Colleagues, The item is indeed on today's CCWG call agenda. (item 3, see attachment). Best Mathieu Le 26/05/2015 08:49, Kavouss Arasteh a écrit :
Dear Leon Dear other Co-chairs Dear Colleagues From the e-mail discussions, I recognized that the matter of Member Model with or without UA and various options to do so is still unclear for many When therre are more than 150 e-m,ailé exchanged in which the issue was addressed from various angle It means that there are issues to be addressed May I respectfully suggest that include the matter in today's agenda Kavouss
2015-05-26 8:37 GMT+02:00 Barrack Otieno <otieno.barrack@gmail.com <mailto:otieno.barrack@gmail.com>>:
I think it is always best to institutionalize membership that way by laws have room to operate since we are dealing with an entity as opposed to when the same is personalized which allows room for feelings to operate.
On 5/26/15, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote: > On Tue, May 26, 2015 at 6:20 AM, Bruce Tonkin < > Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: > >> ...... Or put another way – how is the member held accountable to the >> appointing organization? >> > > Good question, another question from me is "whether the membership can be > tied to the position and not the person". i.e Is it possible to recognise > the Chair of SO/AC as the members? if yes, i think that would make whatever > accountability mechanism within the SO/AC applicable on their member > representative; Like the various SO/AC would be able to replace their Chair > (as they would have normally done) if they find him/her no longer operating > by their guidelines > > Regards > >> >> >> Regards, >> >> Bruce Tonkin >> >> >> >> >> >> *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 *Alan >> Greenberg >> *Sent:* Monday, 25 May 2015 11:16 AM >> *To:* León Felipe Sánchez AmbÃa; Kavouss Arasteh >> *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> >> *Subject:* Re: [CCWG-ACCT] pending legal questions >> >> >> >> Leon, at least from my point of view, I think the question is a bit more >> specific. We of course know that individuals have a legal persona and >> therefore could be Members (or Designators). >> >> The question is whether it is practical to structure things so that the >> SO/AC Chairs (or other individuals named by their office within the ICANN >> community (perhaps a Chair of a SG in the case of the GNSO) can be >> identified as Members and whoever the incumbent is in the office plays >> that >> role. Or if that is not possible, is there an easy easy to designate >> them >> (no pun intended) as Designators or Members when they assume office. And >> if >> some peron is playing that role, can they appoint someone else to act in >> that capacity in place of them. >> >> Alan >> >> At 24/05/2015 08:56 PM, León Felipe Sánchez AmbÃa wrote: >> >> Dear Kavouss, >> >> Thanks for your questions. At this stage, the advice from lawyers is that >> membership approach can be implementable in many ways. One being the >> establishment of UA but also any other kind of legal vehicle. The example >> mentioned has been a non-profit organization. I stress that this has just >> been used as an example and no one has suggested this approach as it has >> only been used to illustrate which other legal vehicles could be used to >> become a member. >> >> The bottom line is that to exercise certain powers as Board member >> removal >> and budget approval, there would be the need to have a legal vehicle >> (whatever legal vehicle) to implement the proposal. >> >> I hope you find this information useful. Please let me know if you need >> further clarification. >> >> >> Best regards, >> >> >> León >> >> >> El 24/05/2015, a las 2:29, Kavouss Arasteh < kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> >> escribió: >> >> Dear Leon >> I have asked few questions for which no reply are yet provided?! >> Now , since last week , extensive discussions are on going on whether a >> membership approach is implementable without a need to UA? >> May you raise this issue to the legal council pls >> Regards >> Kavouss >> >> >> Sent from my iPhone >> >> On 24 May 2015, at 02:21, León Felipe Sánchez AmbÃa < >> leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> wrote: >> >> >> Dear Jorge, >> >> Apologies for the delayed reply. On April 1st, Sidley answered these >> questions on the Lega Sub-team list. I apologize for having missed them >> and >> not forwarding them to you. >> >> I hope you find this information useful. >> >> >> >> *A. Jurisdiction: What provisions, if any, can be included in the >> Bylaws or articles of incorporation related to jurisdiction issues? Is >> that >> possible under current ICANN’s structure? What extra accountability >> would >> changing jurisdiction bring to the community? * >> *1.* *Addressing jurisdiction in articles and bylaws and whether >> possible under ICANN’s structure:* Under concepts of state corporate >> law in the US, the entity’s articles of incorporation set forth the >> jurisdiction under which a corporation is formed . The laws of the >> jurisdiction of formation (currently for ICANN, California) govern the >> internal affairs of the corporation (the “ internal affairs doctrine“) >> . >> These internal affairs include issues that one would expect to see >> expressed in bylaws such as how the entity is organized internally and >> the >> various roles and decision rights and responsibilities of key >> participants: members or designators (if any), directors and officers, >> and >> other key constituents. Generally the corporation has to have s a >> "registered office" in the state of incorporation but it may have its >> primary office in another jurisdiction. There is also flexibility to >> provide for alternate dispute resolutions and to designate specific >> choice >> of law provisions for such dispute resolution. For example, the bylaws >> can set up alternative dispute resolution processes subject to binding >> international arbitration that follows bespoke rules formulated and >> agreed >> to by the community in the bylaws and other core documents. Although >> this >> does not fully allow the community to establish a comprehensive and >> binding >> private international law, and some court challenges will remain possible >> for entities organized under the laws of any jurisdiction, this would >> allow >> for the resolution of most disputes in a manner consistent with the legal >> norms of the multi-stakeholder community, as has long been the case with >> respect to domain name disputes. Outside of bylaw provisions, >> contracting >> parties typically specify what law shall govern specific contractual >> arrangements and provide forspecific mechanisms to apply for dispute >> resolution. For example CA law need not be the law chosen to rule a >> particular contractual relation. And contracts with third parties can >> define alternate jurisdictions and mechanisms to resolve legal >> disagreements. >> >> To the extent that this question is intended to relate to establishing >> a commitment to review where ICANN should be incorporated in the future, >> we >> need more information about what is sought to be accomplished and the >> opportunity to undertake specific research. >> >> To the extent that this question is about locking in a jurisdiction for >> formation or for dispute resolution or other purposes such that it is >> very >> difficult to change in the future, we would need to undertake research >> and also explore the pros and cons of such an approach and how it might >> be >> effectuated for example through a very high threshold for amendment or >> golden bylaw. >> >> *2. Extra accountability mechanisms in other jurisdictions:* As to >> whether extra accountability mechanisms are available in other >> jurisdictions, we would have to engage in research and it would be >> helpful to have direction as to several jurisdictions of interest rather >> than canvas the entire set of possibilities. We are not aware without >> further research of a jurisdiction that offers extra accountability >> mechanisms that could not be created in the flexible framework provided >> by >> state corporate law in the US Before we undertake research on this >> question >> it would be helpful to better understand the underlying concern that is >> driving this question. >> >> >> >> *B. Liability: Which would be the liability of those persons conforming >> the proposed bodies? (IRP, Supervisory Board) Has the figure of a >> supervisory board has been put in practice in California? 1. Liability >> of persons participating on proposed bodies:* While directors and >> officers of a corporation take on certain responsibilities and >> liabilities >> as fiduciaries, it is relatively rare for a director or officer of a >> non-profit corporation to be found liable for breach of duty absent >> malfeasance – for exxample engaging in self-dealing. In addition, the >> corporation generally can exculpate (hold harmless) and indemnify >> (promise >> to pay for a financial liability outcome) so long as the act was not >> criminal or a breach of the duty of loyalty (self-dealing) or otherwise >> in >> bad faith. As to other persons – for examples members of a review panel, >> these same prootections of exculpation and indemnification are available. >> Generally there are a variety of protections available to help protect >> persons involved in ICANN governance from personal liability. >> >> * 2. Supervisory boards:* A two tier board structure – with of a >> supervisoory board and a management board is generally not a specific >> legal >> construct under state corporate law in the US. State corporate law >> generally contemplates that the board of directors has authority to >> manage >> and direct the affairs of the corporation and that the board typically >> delegates management functions to a group of officers. Those officers >> are >> not typically organized into a “managing board†(but this may be a >> difference without much specific legal import). Additionally, a board >> can >> delegate to a board committee in ways that can mimic some aspects of the >> distinction between a supervisory board and a management board , although >> if that board committee takes on management tasks there is some risk that >> its members could be viewed to take on the heightened legal >> responsibilities and liabilities associated with corporate officers. >> Best regards, >> >> >> León >> >> >> El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> escribió: >> >> Dear Co-Chairs, dear all >> >> >> I would like to kindly request information on the status of processing >> the >> following legal questions, as I was informed more than a month ago that >> an >> answer was being prepared, but still I have not seen any specific reply. >> >> All questions were refered to and posed during the CCWG call of March >> 31st: >> >> == >> >> - On jurisdiction I'd like to remind that there is a question which as I >> understand will be posed to our legal advisors on common practice >> regarding >> provisions included usually, if any, on jurisdiction issues in Bylaws and >> Articles of Incorporation (and the current situation in the case of >> ICANN)? >> >> - question of possible liabilities of future "community council" members >> -for exercising its powers- has been or will be considered. A question >> which arises from the paper is that the more power you give to actors >> different to the board, the more it is likely that they become liable in >> some fashion - this should be further investigated. >> >> - it seems in both papers (Sidley and Adler) that there would be some >> difficulties in finding solutions for independent and binding appeals >> panels - I guess this will need to be explored in depth >> >> == >> >> The references to legal memos in those questions should be understood as >> refering to the papers current on March 31st. >> >> Thank you very much for your assistance and best regards >> >> >> >> Jorge Cancio >> Switzerland >> >> Von meinem iPhone gesendet >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> > > > -- > ------------------------------------------------------------------------ > > > > > > *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng > <http://www.fuoye.edu.ng> Mobile: +2348035233535 <tel:%2B2348035233535>**alt email: > <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng> > <seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>>* > > The key to understanding is humility - my view ! >
-- Barrack O. Otieno +254721325277 <tel:%2B254721325277> +254-20-2498789 <tel:%2B254-20-2498789> Skype: barrack.otieno http://www.otienobarrack.me.ke/ _______________________________________________ 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
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
Dear Leon Thank you for this information. However I feel that these answers do not entirely capture all the elements put forward in the questions as initially posed during our CCWG discussions. To be specific, under the first question an answer was sought about the common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN). I.e. what is usually done with PBC in this regard under Californian Law. On the second question I think that it is still unclear where the limits are crossed as to the liability of members of future "community empowered structures" or as was initially formulated: "the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated." And finally, there is -at least in your email- still no answer to the third question: "it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth". Thanks for considering this and regards Jorge Cancio Von: León Felipe Sánchez Ambía [mailto:leonfelipe@sanchez.mx] Gesendet: Sonntag, 24. Mai 2015 02:21 An: Cancio Jorge BAKOM Cc: accountability-cross-community@icann.org Betreff: Re: pending legal questions Dear Jorge, Apologies for the delayed reply. On April 1st, Sidley answered these questions on the Lega Sub-team list. I apologize for having missed them and not forwarding them to you. I hope you find this information useful. A. Jurisdiction: What provisions, if any, can be included in the Bylaws or articles of incorporation related to jurisdiction issues? Is that possible under current ICANN's structure? What extra accountability would changing jurisdiction bring to the community? 1. Addressing jurisdiction in articles and bylaws and whether possible under ICANN's structure: Under concepts of state corporate law in the US, the entity's articles of incorporation set forth the jurisdiction under which a corporation is formed . The laws of the jurisdiction of formation (currently for ICANN, California) govern the internal affairs of the corporation (the " internal affairs doctrine") . These internal affairs include issues that one would expect to see expressed in bylaws such as how the entity is organized internally and the various roles and decision rights and responsibilities of key participants: members or designators (if any), directors and officers, and other key constituents. Generally the corporation has to have s a "registered office" in the state of incorporation but it may have its primary office in another jurisdiction. There is also flexibility to provide for alternate dispute resolutions and to designate specific choice of law provisions for such dispute resolution. For example, the bylaws can set up alternative dispute resolution processes subject to binding international arbitration that follows bespoke rules formulated and agreed to by the community in the bylaws and other core documents. Although this does not fully allow the community to establish a comprehensive and binding private international law, and some court challenges will remain possible for entities organized under the laws of any jurisdiction, this would allow for the resolution of most disputes in a manner consistent with the legal norms of the multi-stakeholder community, as has long been the case with respect to domain name disputes. Outside of bylaw provisions, contracting parties typically specify what law shall govern specific contractual arrangements and provide forspecific mechanisms to apply for dispute resolution. For example CA law need not be the law chosen to rule a particular contractual relation. And contracts with third parties can define alternate jurisdictions and mechanisms to resolve legal disagreements. To the extent that this question is intended to relate to establishing a commitment to review where ICANN should be incorporated in the future, we need more information about what is sought to be accomplished and the opportunity to undertake specific research. To the extent that this question is about locking in a jurisdiction for formation or for dispute resolution or other purposes such that it is very difficult to change in the future, we would need to undertake research and also explore the pros and cons of such an approach and how it might be effectuated for example through a very high threshold for amendment or golden bylaw. 2. Extra accountability mechanisms in other jurisdictions: As to whether extra accountability mechanisms are available in other jurisdictions, we would have to engage in research and it would be helpful to have direction as to several jurisdictions of interest rather than canvas the entire set of possibilities. We are not aware without further research of a jurisdiction that offers extra accountability mechanisms that could not be created in the flexible framework provided by state corporate law in the US Before we undertake research on this question it would be helpful to better understand the underlying concern that is driving this question. B. Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California? 1. Liability of persons participating on proposed bodies: While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance - for example engaging in self-dealing. In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith. As to other persons - for examples members of a review panel, these same protections of exculpation and indemnification are available. Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability. 2. Supervisory boards: A two tier board structure - with of a supervisory board and a management board is generally not a specific legal construct under state corporate law in the US. State corporate law generally contemplates that the board of directors has authority to manage and direct the affairs of the corporation and that the board typically delegates management functions to a group of officers. Those officers are not typically organized into a "managing board" (but this may be a difference without much specific legal import). Additionally, a board can delegate to a board committee in ways that can mimic some aspects of the distinction between a supervisory board and a management board , although if that board committee takes on management tasks there is some risk that its members could be viewed to take on the heightened legal responsibilities and liabilities associated with corporate officers. Best regards, León El 23/05/2015, a las 1:22, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> escribió: Dear Co-Chairs, dear all I would like to kindly request information on the status of processing the following legal questions, as I was informed more than a month ago that an answer was being prepared, but still I have not seen any specific reply. All questions were refered to and posed during the CCWG call of March 31st: == - On jurisdiction I'd like to remind that there is a question which as I understand will be posed to our legal advisors on common practice regarding provisions included usually, if any, on jurisdiction issues in Bylaws and Articles of Incorporation (and the current situation in the case of ICANN)? - question of possible liabilities of future "community council" members -for exercising its powers- has been or will be considered. A question which arises from the paper is that the more power you give to actors different to the board, the more it is likely that they become liable in some fashion - this should be further investigated. - it seems in both papers (Sidley and Adler) that there would be some difficulties in finding solutions for independent and binding appeals panels - I guess this will need to be explored in depth == The references to legal memos in those questions should be understood as refering to the papers current on March 31st. Thank you very much for your assistance and best regards Jorge Cancio Switzerland Von meinem iPhone gesendet
participants (9)
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Alan Greenberg -
Barrack Otieno -
Bruce Tonkin -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh -
León Felipe Sánchez Ambía -
Mathieu Weill -
Seun Ojedeji