[At-Large] CCWG Briefings - Presentation

Carlton Samuels carlton.samuels at gmail.com
Sun Feb 28 15:32:05 UTC 2016

On Thu, Feb 25, 2016 at 3:54 AM, Karl Auerbach <karl at cavebear.com> wrote:

> 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.)
> 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
> record-keeping.

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.

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.

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.

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.

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.


Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
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