Notes

Action Items

Transcript

Recordings

Adobe Connect Recording can be accessed here:  https://icann.adobeconnect.com/p1jpfb18j03/

MP3 Recording link can be accessed here:  CCWG ACCT Leadership & Lawyers.mp3

Chat Transcript

Alice Jansen:hi Rosemary!

  Rosemary Fei:Hi Alice -- and Mike

  Rosemary Fei:Hi, Leon

  Rosemary Fei:Hi, Holly

  Mathieu Weill:Hi all

  Michael Clark (Sidley Austin LLP):Hello everyone.  Michael Clark and Holly Gregory sharing one adobe connect log in from London

  Holly Gregory (Sidley):Hi.  Im now on Adobe Connect on my own.

  Becky Burr:hellow

  Steve DelBianco   [GNSO - CSG]:No -- enforceablility IS important

  Holly Gregory (Sidley):@Rosemary, Agree that designators need to be legal persons if this is not a voluntary governance model

  Holly Gregory (Sidley):Sidley agrees with @Rosemary's points

  Holly Gregory (Sidley):Under a designator model, concern is that all of the CWG dependencies cannot be met

  Steve DelBianco   [GNSO - CSG]:Josh -- the IFR recommendations would go to the board.  If the board refused to implement the changes, community could do an IRP.  Couldn't THAT reverse the board's decision?

  Edward McNicholas, Sidley Austin LLP:In noting that members can enforce their rights, we should not lose point of the fact that most disputes will continue to be resolved via binding arbitration

  Leon Sanchez:cricket

  Rosemary Fei:In notes, not "volunteer" but "voluntary"

  Holly Gregory (Sidley):Yes @ED, binding arbitaration  backed by ability to go to court

  Rosemary Fei:Request clarification: does "internal model" equate to "voluntary model"?

  Leon Sanchez:I see enforceability as a two tier game. First tier is where the Board is obliged to take into account what members/designators tell them. Second tier is where the Board doesn't take into account and therefore doesn't comply with its obligation and then someone decides to trigger some mechanism to enforce rights, being Court the last resource

  Holly Gregory (Sidley):In addition, there is ability to recall the board

  Mathieu Weill:@Holly : could we have Board recall without members ?

  Leon Sanchez:@Mathieu my understanding is yes with designators

  Becky Burr:so we are just in the same situation - the IRP is not binding

  Stephanie Petit:@Mathieu, yes.  You can have Board recall with designators.

  Becky Burr:no, i dont think that's right

  Becky Burr:but it can't be binding without members

  Stephanie Petit:@Becky, the Board recall can be enforced if there are legal persons.  Recall that the designator model counsel suggests has UAs, persons.

  Becky Burr:right, i'm just talking about making the IRP binding. 

  Holly Gregory (Sidley):Designators  need to be legal persons unless you want their powers as now to only be subject to non-binding internal mechanisms.

  Stephanie Petit:I must defer to Sidley regarding the discussion of IRP.

  Mathieu Weill:@Holly : could existing SO/AC argue they are already a UA ?

  Holly Gregory (Sidley):Very little complexity in a UA -- Agree

  Leon Sanchez:I thin the main arguments so far are complexity in implementation and the risk of going rogue

  Rosemary Fei:@Becky, exactly, there has to be a PARTY to the contract

  Rosemary Fei:Bylaws may be enforced by directors, members, officers

  Holly Gregory (Sidley):We can require that internal mechanisms and arbitration be used prior to court. 

  Rosemary Fei:CA AG is not going to enforce bylaws as contract -- AG cares only about breaches of charitable trust

  Mathieu Weill:@Rosemary : so Directors representing ccNSO could go to court to enforce, or the SO/AC could dismiss them

  Mathieu Weill:?

  Rosemary Fei:UAs will not have any assets; how are they going to pay court fees?

  Rosemary Fei:@Mathieu, yes

  Steve DelBianco   [GNSO - CSG]:I heard you say a non-legal person could have standing to file an IRP, but they would not have standing to ask a CA court to enforce the IRP decision.  Right?

  Holly Gregory (Sidley):Mathieu, the director as a director would have standing for disputes related to the bylaws so as a practical matter yes -- but agian, the right to designate the director requires that the UA be a legal person

  Mathieu Weill:@Rosemary: so in the voluntary model, a key to enforrceability could be the ability to remove this Director ?

  Holly Gregory (Sidley):es, but that ability requires that the designator or member who appointed is a legal person, if they want to be able to enforce the right to appoint and remove

  Rosemary Fei:@Mathieu, agree with Holly's response

  Steve DelBianco   [GNSO - CSG]:If board refuses to agree to enter a BINDING IRP, there's nothing to enforce.   And only Member model lets us override the board's claim that their fiducuary duty forces them to decline a binding IRP

  Mathieu Weill:Leon, can I try to clarify ?

  Holly Gregory (Sidley):We are only aswering questions that you certify to us.  So we are answering the Perez questions as Rosemary said.  Please send them to us .

  Holly Gregory (Sidley):Please send us all questions that you would like us to respond to.  We are not reviewing the questions as they are raised.

  Holly Gregory (Sidley):may I respond?

  Rosemary Fei:I am only aware of the Perez questions being outstanding, although it's possible questions from Jorge Cancio are still outstanding.  That's all.

  Leon Sanchez:Thanks @Rosemary

  Mathieu Weill:Absolutely Rosemary. I suggest a re-sync on that

  Leon Sanchez:yes

  Mathieu Weill:Who would be the point of contact for the lawyers to go through the questions ?

  Rosemary Fei:Sorry, there is one additional set of questions that's outstanding -- from Sam Eisner on member rights provided by statute.  We're nearly ready to send that to you.

  Rosemary Fei:Holly is coordinating counsel, as designated by you.

  Mathieu Weill:Holly and Rosemary, perfect !

  Holly Gregory (Sidley):@Mathieu - great idea to update and clarify the chart

  Holly Gregory (Sidley):and we will also catalgue the discussions of these issues in prior memos

  Holly Gregory (Sidley):and add to it how CWG dependencies are included

  Rosemary Fei:So is the chart update being certified by this conversation, or will we get a written directive (which was the required protocol, but you can waive your own protocols, of course)?

  Leon Sanchez:@Rosemary it is certified by this conversatino

  Mathieu Weill:Staff, can you request the update of the chart as an action item please ?

  Rosemary Fei:Thank you, Leon

  Holly Gregory (Sidley):@Steve, understood re enforceability -- ability to go to court supports the board's commitment to  the community powers

  Steve DelBianco   [GNSO - CSG]:We had a requirement for powers.  And we assume that a power must be enforceable for it to be an actual exercise of power.

  Holly Gregory (Sidley):Without legal enforceability the entire accountabiliyt system you are building in voluntary

  Becky Burr:enforceability anywhere short of spilling the board -

  Rosemary Fei:What does "enforceable" mean, short of being able to enforce in court?  We need you to tell us what's "enough" enforceability.

  Steve DelBianco   [GNSO - CSG]:the backtracking is driven by fears that we'd have ICANN in court quite frequently, and that courts would be interpreting ICANN bylaws, mission, etc.

  Mathieu Weill:@Rosemary : yes, enforceable is not easy what is "enough". So we have to test several levels with the group to see what level is appropriate

  Becky Burr:i think we are getting a little off track.  we said, in a fairly convincing way, that you can people out of court.  folks then focused on complexity

  Becky Burr:exactly Holly - we end up with a voluntary arrangement

  Steve DelBianco   [GNSO - CSG]:Amen, Holly

  Mathieu Weill:@Becky one good argument I've heard is that the Internet was built on voluntary arrangements

  Becky Burr:the Post/Kehl New America Foundation comments are good on this point

  Becky Burr:yes, voluntary arrangments between absolutely heterogeneous volunteers

  Steve DelBianco   [GNSO - CSG]:Congress may insist on enforceability.  NTIA will not, since they will accept whatever the community proposal says

  Becky Burr:academics and engineers in  non profit community

  Becky Burr:thanks.

  Mathieu Weill:Thanks for chairing Leon !

  Rosemary Fei:Bye, all.

  Leon Sanchez:Thanks everyone