<div dir="ltr"><div class="gmail_extra"><br><div class="gmail_quote">On Thu, Feb 25, 2016 at 3:54 AM, Karl Auerbach <span dir="ltr"><<a href="mailto:karl@cavebear.com" target="_blank">karl@cavebear.com</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><br>
One master would be the fiduciary obligations to protect the interests of the corporation (the measure of which for public-benefit corporations such as ICANN must incorporate an evaluation of the effect on the public interest.)<br>
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The other master would be this new outer shell that has marionette-like strings that reach into and sometimes supersede the decisions of the board and its members.<br>
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Corporations crumble and are penetrated every day for failures to adhere to proper formalities regarding the making of decisions, responsibility for those decisions (or lack of decisions), ownership of property, and record-keeping.</blockquote></div><br><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small">First, the record will show I tend to be mindful of Karl's views. This aside, his three (3) paragraphs excerpted above more or less outline both my understanding of how corporate governance is devised and the doubts I in my own head of what obtains from the proposals.</div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small"><br></div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small">It remains, in my humble opinion, a red herring to focus on the domicile of ICANN, the corporation. It is my experience that in these matters of 'state', it always is the case that you feel the hand of Esau even as you hear the voice of Jacob. NEVER focus on what is said. ALWAYS focus on what is done. Me now, I have always believed that the essential matters for our focus and attention are the constitution and diversity of the Board, the makeup and diversity of the staff, the breadth and sense of corporate self vested in the bye-laws and the practical execution of those rules to date. </div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small"><br></div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small">Karl pointed a fact that can survive the most rigourous disputation; even a cursory survey of corporation law from other jurisdictions - save and except those at the edge of empire intended to be conduits for capital and assorted chicaneries and which conveniently adapt the common law - will show almost uniform general requirements. Even in the case of membership organisations, it isn't so much the law but how the structure is organised and the business executed for benefit. Even as we discuss the re-balancing of powers, it is not cool to point out that as a centre of power in the current dispensation, the Board is in play and have compelling interests to protect. Thulsly, it is realpolitik to expect the resistance as inevitable.</div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small"><br></div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small">It is inevitable that if placed in a position where so many overseers have to be satisfied for movement, the Board of even a public benefit corporation would resist; too many interfaces to manage, too many competing power centres in decision-making, too many uncertainties introduced. Especially if they know the 'balance' intended is hardly achievable. It remains fit and proper, in my opinion, to attend the district court if anyone with standing feels aggrieved by a Board decision. This aspect would be a crap shoot everywhere. But I personally believe that the weight and gravamen of US law in this area gives one an almost even break at justice.</div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small"><br></div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small">I have said it before and it bears repeating. If I were a Board member at this time and absent indemnification approaching almost sovereign immunity, I would also be troubled by certain aspects of this proposal. </div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small"><br></div><div class="gmail_default" style="font-family:'comic sans ms',sans-serif;font-size:small">-Carlton</div><br><br clear="all"><div><div class="gmail_signature"><br>==============================<br>Carlton A Samuels<br>Mobile: 876-818-1799<br><i><font color="#33CC00">Strategy, Planning, Governance, Assessment & Turnaround</font></i><br>=============================</div></div>
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