[At-Large] ICANN Board Nomination

Christian de Larrinaga cdel at firsthand.net
Sat Sep 11 20:54:14 UTC 2010


I was hoping to avoid the semantics (of a particular jurisdiction) and focus on the intent.

But as you have raised this. California law appears to have the intent of creating schizophrenic board members of not for profit public benefit corporations. As you say on the one hand they have to mind the company and on the other they have to mind the public benefit. Doing this simultaneously is a huge challenge even for what an American might term a mom and pop outfit. But managing this for a body in the eye of global public interest is remarkably ambitious for those people on the board. 

The problem ICANN faces is not really one of the detail or interpretation of California law. It is whether it holds the public trust globally. 

I would not be surprised if the perception of the fiduciary or trustee or public benefit (whatever you may wish to term it) interests being upheld by the board of ICANN is not seriously dented should the majority of the board be paid for that role by ICANN. This may be unfair but it is likely. 

The management of public confidence is one reason why English Charity law separates out the trustee (board) from the management board and why the trustee board members are not paid. It ensures that there is clear air between those who are tasked for managing the purposes of the charity (for public benefit) and those tasked by those people to manage the organisational functions to satisfy that purpose. 

I also think it is worth considering that the likely reaction to a loss of trust in the public benefit credentials of the ICANN board would be to restore that by imposing or arranging some other oversight mechanism over ICANN. 

It is perhaps also worth noting at this point in my comment that there is no reason other than the antecedents of the location of ISI --> Jon Postel --> IANA for why ICANN should be solely a California regulated body. 


On 10 Sep 2010, at 17:41, Karl Auerbach wrote:

> 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 
> elsewhere.)
> 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 
> means.)
> The directors are not "trustees".
> There are subtle differences between the role of a trustee and that of a 
> director.
> 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.
> 	--karl--
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