[discuss] [IANAxfer] [ccnso-igrg] Two accountability questions - help pls- Workshop 23 - ICANN accountability

Mike Roberts mmr at darwin.ptvy.ca.us
Thu Sep 11 19:39:26 UTC 2014

John - 

I am perfectly happy to have you cast a wider net, but let’s be up front about it.   Changing ICANN’s current legal base is a much bigger deal than we have been generally discussing.  Given the very wide international debate that would be engendered by embarking on such a step, a debate that would require boundaries defined differently than those applying to ICANN’s present California base, it is not far from “starting over.”

- Mike

On Sep 11, 2014, at 12:16 PM, John Curran <jcurran at istaff.org> wrote:

> On Sep 11, 2014, at 2:09 PM, Mike Roberts <mmr at darwin.ptvy.ca.us> wrote:
>> Before this thread goes any further, someone should ask a lawyer familiar with California statutes to give an opinion on the ICANN Board’s ability to delegate its powers to a third party entity, whether inside the bylaws or not.
> Really?  Wouldn't it be better if the community would consider its requirements,
> and then use that to determine whether ICANN is properly constituted or needs
> to change, rather than presuming that any outcome must be constrained by the
> current specific mode and manner of incorporation?
> Keeping to the current Calf. public benefit incorporation, it is indeed very
> difficult to delegate Board authority, and in fact, now committees exercising 
> the authority of the board may not even include members who are not directors.  
> For those who are interested in the constraints (which are routinely trotted
> out with respect to ICANN), a good starting point is "Changes in the California 
> Nonprofit Corporation Law affecting public benefit corporations"
> <http://www.lexology.com/library/detail.aspx?g=235c0c93-e40f-49f4-83d4-61a61ad40405>
> Of course, the point that is doesn't seem to ever get mentioned is that such 
> constraints on Board authority delegation for CA public benefit corps are not 
> with respect to powers that are actually held by its _members_... i.e. if a 
> public benefit corporation has actual members, those members can indeed, per 
> the bylaws, collectively hold authority which is normally exercised by the
> Board of Directors.  That does, of course, require having actual bona fide
> members, which brings with it quite a few more accountability provisions...  
> Perhaps this why this is not discussed more often as an option?
> Yes, by all means seek out legal counsel, but make sure you ask them the
> questions in the form of "how can we accomplish what we wish" rather than
> "what is potentially wrong with this approach" ...
> FYI,
> /John
> Disclaimer: my views alone.

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