[At-Large] CCWG Briefings - Presentation
karl at cavebear.com
Thu Feb 25 08:54:20 UTC 2016
Thanks for the effort putting those materials together.
I say however, with my California lawyer hat on, that I wonder whether
this entire proposal might have a great deal of trouble fitting into the
requirements that are imposed by the California Corporations Code and by
the US Federal tax code.
Indeed, were I corporate counsel I'd be fighting this tooth and nail.
I'd do so because I sense that these proposals could allow the
corporation of ICANN to fail as a legal entity or to forfeit ICANN's tax
This proposed structure not only appears as, but is actually being
advocated as, a way to bypass the obligations that are imposed by law,
such as the duties. responsibilities, and powers of a board of directors
and a rather transparent attempt to evade the membership aspects of
California public benefit, non-profit corporations.
As a California lawyer I am rather surprised that all of this machinery
is being invented to avoid what are the perfectly reasonable, practical,
and widely used membership provisions of the California Corporations Code.
These proposals essentially wrap ICANN in just another level of
corporate-like structure without the word "corporation". But that
wrapping structure appears to lack the most basic characteristics that
come via a legal form of organization (such as corporation, partnership,
sole proprietorship). These characteristics include clear authority for
making decisions, clear standards of responsibility in the making of
those decisions, full access to information needed to make those
decisions, methods to resolve disputes, and clear responsibility for
debts and harms. The lack of these characteristics is an invitation to
long and expensive litigation - in which the winner will not be the
public but, rather, he who has the deepest pockets.
And were I still a director of ICANN I'd be fighting this tooth and nail
because it would make me subject to two masters - and it has been
written that no man can serve two masters.
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
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.
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
A lot of people resent US law or California law. But California law is
far from unique or special. California law is similar to organizational
laws found in many places. And those laws are based on literally
centuries of real-world experience dealing with the cauldrons of
competing interests that are found in organizations everywhere.
These proposals seem to me to be amateur law making, lacking the
practical experience that has gone into the actual laws of corporations,
including the membership aspects that ICANN has long evaded and that
these proposals attempt to re-invent, but do so inexpertly.
ICANN is badly in need of repair - and has been for a long time. If you
take a look at what we (the Boston Working Group) proposed back in 1998
- http://cavebear.com/bwg/ - you will find many familiar ideas about
how to better write ICANN's organic documents. And I know, perhaps
better than any other person, how much ICANN resists accountability and
But that repair should be an actual repair, with hard, legally
enforceable duties and responsibilities. It should not be an ad hoc
invention that resembles to this lawyer's eyes, a collection of utopian
hopes that are not likely to withstand any serious encounter with the
real-life practicalities of law, economics, or politics.
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