[At-Large] ICANN Board Nomination

Karl Auerbach karl at cavebear.com
Fri Sep 10 16:41:30 UTC 2010

On 09/10/2010 03:49 AM, Christian de Larrinaga wrote:

> Just because it can be done does not mean it should. There is a
> practical distinction to be drawn to successfully manage public trust...

It's worthwhile to take some care with certain words.  There are a lot 
of very subtle distinctions, many of which arise from the particular 
jurisdictions involved, but they can be important.

(There is often a tendency to throw stones at US or California laws in 
these regards - let me just say that no matter which jurisdiction were 
picked there would be similar definitional issues.  And, at least in my 
opinion as a California person, I think the California version of these 
things is reasonably rational and at least on par with one would get 

ICANN is *not* a "trust".  ICANN is a "public benefit" and "non-profit" 
corporation.  (And it is also an organization that has obtained a tax 
exemption based on "lessening the burdens of government", whatever that 

The directors are not "trustees".

There are subtle differences between the role of a trustee and that of a 

Both have fiduciary obligations but they have a somewhat different 
focus.  Directors' obligations flow to the corporation (and in the case 
of public-benefit corporations director obligations are expanded to 
include care for the public benefit as well as for the corporation 
itself.)  Trustee's obligations flow to the beneficiaries.

There may be differences, for example, regarding upon what and whom a 
director or trustee may rely. Directors (in California) are entitled 
(but not obligated) to rely on certain legal and accounting 
professionals.  Trustees often have tighter constraints.


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