October 2015 - Accountability-Cross-Community

Re: [CCWG-ACCT] A contractual solution for the "membership"/accountability problem
by Mailing List for the ICANN Accountability & Governance Cross Community Group Oct. 15, 2015

Oct. 15, 2015

Yes I read it. It does say that the line is unclear, but that certain responsibilities cannot be delegated including budget and strategic. Plan. Our lawyers have been clear for a long time that budget and plan veto are problematic in a non-member situation. And that matches the Board's position that to give this up impacts their fiduciary duty (and I agree). The ALAC has said it would reluctantly accept the member model, but it is not our preference, and that implies we are willing to forego the budget/plan veto. Alan At 13/10/2015 05:45 PM, Aikman-Scalese, Anne wrote: >Alan, did you read the Sidley memo Mathieu >circulated that says the in the current >corporate structure, the ICANN Board cannot >delegate decision-making in relation to the >corporation to any third party, including via >binding arbitration? This is on page 2 of the >Appendix. Wouldn't that also impact a contract >theory where decision-making in relation to >budget/plan veto is delegated via contract to >the party on the other side of the contract? >Anne > >Anne E. Aikman-Scalese >Of Counsel >Lewis Roca Rothgerber LLP | >One South Church Avenue Suite 700 >Tucson, Arizona 85701-1611 >(T) 520.629.4428 | (F) 520.879.4725 >AAikman(a)lrrlaw.com | www.LRRLaw.com >-----Original Message----- >From: >accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Alan Greenberg >Sent: Tuesday, October 13, 2015 1:36 PM >To: David Post; Accountability Cross Community >Subject: Re: [CCWG-ACCT] A contractual solution >for the "membership"/accountability problem > >With the usual "I am not a lawyer disclosure", >my understanding is that the Bylaws are >effectively a contract. In all of the contructs >(whether it is the CMSM, CMSD or (my most recent >proposal) CMSanything, there is an UA composed >of the AC/SO (or a subset), or in the earlier >models multiple UA, one per AC/SO. In the Board >proposal, since I do not believe that the AC/SO >Chairs are willing to assume responsibility for >taking actions personally (nor should they be >expected to), there would also have to be an UA >formed to act on behalf of the AC/SOs. As I >understand it, the UA would have to exist at the >time the of the violation or act that it was >complaining about, so that really implies it >would have to exist at the start (since one >cannot predict when trouble will arise. > >So in my mind, the CMSx, the Board proposal, and >your new one all really have a common construct >of a UA acting on behalf of the AC/SOs. The >differences are in how the "contract" or the Bylaws allow the UA to act. > >The recent legal briefing on our current model >(ie in the Bylaws today) says that although the >AC/SOs and NomCom that appoint board members are >not called designators, for all intents, they >are. The new constructs (any of them) would >allow the AC/SOs or a subset to exercise the >powers other than appointment of directors. We >have been told (by CCWG lawyers) that these >powers are enforceable (other than budget/plan veto). > > From a practical point of view, I think that > all of the proposals are in fact very close to > each other, but the different terminology and > in some cases, a lack of precision masks that similarity. > >Alan > >At 13/10/2015 04:08 PM, David Post wrote: > > >To all: > > > >David Johnson and I have been developing an idea that might be able to > >break the impasse between the Board and the stakeholders regarding the > >membership model as a vehicle for community control over the Board's > >actions. Here's David's description of the overall idea: > > > >ICANN Accountability Â Back to Contract > > > >There is broad agreement that the community powers recommended by the > >CCWG should be "enforceable"?. The proposal assumes that the > >Unincorporated Association that would enforce them would have to be > >created by, and made the sole "member"? of ICANN, by means of an > >amendment to ICANN's bylaws. Only the Board can amend the bylaws, and > >they do not want to create a member. This would appear to create an > >unresolvable stalemate. Until one recalls the scene from Indiana Jones > >when, treated by a knife twirling thug, the hero remembers that he has > >a gun and uses it. > > > >As CCWG's counsel have noted, an unincorporated association can be > >formed by any group with the requisite intent, with minimal formality. > >So the community UA, consisting of and acting only at the direction of > >the SOs and ACs that make up the ICANN community, could be formed > >directly by the actions of that community. The UA, now a legal person, > >could enter into contracts (using whatever decision-making process is > >provided in the UA's own bylaws). It could, for example, make an offer > >to enter into a contract with ICANN itself. Such a contract might > >provide that ICANN would promise to adopt and abide by a specified set > >of bylaws (notably, those providing for community powers and an > >enhanced IRP). The contract could provide for specific performance and > >dispute resolution (not unlike the MEM, but with the group doing the > >"enforcing"? having been formed in advance of any bylaw violation). The > >contract could make individual SOs and ACs, or even subcomponents of > >these, into third party beneficiaries entitled to enforce the > >contractual promises as against the ICANN corporation. In light of > >these commitments, the community UA could itself then promise to give > >its collective approval to the IANA transition. > > > >ICANN's Board would still need to agree to any such contract, to make > >it binding. But the Board would no longer have an objection based on > >supposed dangers of creating a "member"?. It has said it agrees that > >the proposed community powers should be enforceable, and that IRP > >decisions enforcing revised bylaws and mission statement should be > >binding. The CCWG can reach its own consensus on what contractual terms > >(what draft bylaws to include by reference and what community > >decision-making process to use regarding decisions to offer and enforce > >the contract). It would be difficult for the Board to refuse to sign > >such a contract Â once supported and offered by an Unincorporated > >Association consisting of the community and > acting with requisite consensus). > > > >The community only supported "membership"? > >because this was thought to be the only way to make the proposed > >community powers enforceable against a reluctant ICANN board. If there > >is another way to accomplish enforceability, while avoiding the Board's > >objections to "structural change"? of ICANN itself, that should be > >acceptable. That "other way" is to enter into a contract under which > >ICANN promises to adopt and comply with specified bylaws and to > >establish a binding IRP. > >Because there won't be a binding IRP to enforce a duty to create a > >binding IRP, the registry constituency has already suggested that there > >be a contract that requires ICANN to follow through on that promise. > >This suggestion just applies the same principle to the entire community > >and all of the proposed community powers. It's time for ccwg to start > >drafting contract terms. > > > > > >*********************************************** > > > >Here's a rough outline of the logistics of how this would work: > > > >Acting by consensus resolution, SOs and ACs would form an > >unincorporated association. This would include writing bylaws regarding > >decision-making process for the UA (action solely at direction of > >consensus of SOs/ACs?) As its first act, the UA would offer ICANN a > >contract with the following terms. > > > >1. ICANN would agree to adopt and abide by a specified set of bylaws > >(which would be attached as an exhibit to the contract) that set forth > >community powers and establishment of binding IRP. > > > >2. The contract would have a term coterminous with ICANN's existence > >and could not be cancelled. (no expiration date and no grounds for > >termination by ICANN) > > > >3. The contract would call for specific performance. > > > >4. Disputes would be resolved by the IRP, and would be binding on ICANN > >(even if ICANN chose not to appear before the panel). > > > >5. In addition to the UA itself, Any two SOs or ACs, acting by internal > >consensus, could bring a case to enforce the provisions, and ICANN > >would pay the costs of such a case. > > > >6. The contract would name as third party beneficiaries any Individual > >SO/AC, sub constituencies and any parties materially harmed by breach > >of the agreement - providing that these third parties could also bring > >a case to enforce the agreement, at their own expense, with costs > >allocated by the IRP). > > > >7. ICANN would promise that, in the event the terms of the contract > >could not be enforced in the absence of a "membership" structure, it > >would recognize the UA as a member under California law. > > > >8. ICANN would warrant that it has the authority to enter into the > >agreement and agree that it will not assert in the future that > >compliance with the contract would be prevented by any claimed conflict > >between the contract and the ability of the Board to exercise its > >fiduciary duties. > > > >9. The UA would agree, in light of these ICANN promises, to support the > >transition (treating ICANN as the steward of the IANA function and as > >the source of policy for dns absent any ability of US Government to > >take that role away). > > > >Obviously, there are still some unresolved details regarding what the > >bylaws would say (e.g., re community oversight of budget). These would > >have to be resolved. > > > > > >David > >******************************* > >David G Post - Senior Fellow, Open Technology Institute/New America > >Foundation blog (Volokh Conspiracy) > >http://www.washingtonpost.com/people/david-post > >book (Jefferson's Moose) http://tinyurl.com/c327w2n music > >http://tinyurl.com/davidpostmusic publications etc. > >http://www.davidpost.com > >******************************* > > > >******************************* > >David G Post - Senior Fellow, Open Technology Institute/New America > >Foundation blog (Volokh Conspiracy) > >http://www.washingtonpost.com/people/david-post > >book (Jefferson's Moose) http://tinyurl.com/c327w2n music > >http://tinyurl.com/davidpostmusic publications etc. > >http://www.davidpost.com > >******************************* > >_______________________________________________ > >Accountability-Cross-Community mailing list > >Accountability-Cross-Community(a)icann.org > >https://mm.icann.org/mailman/listinfo/accountability-cross-community > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >________________________________ > >This message and any attachments are intended >only for the use of the individual or entity to >which they are addressed. If the reader of this >message or an attachment is not the intended >recipient or the employee or agent responsible >for delivering the message or attachment to the >intended recipient you are hereby notified that >any dissemination, distribution or copying of >this message or any attachment is strictly >prohibited. If you have received this >communication in error, please notify us >immediately by replying to the sender. The >information transmitted in this message and any >attachments may be privileged, is intended only >for the personal and confidential use of the >intended recipients, and is covered by the >Electronic Communications Privacy Act, 18 U.S.C. Â§2510-2521.

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FW: Memorandum with Responses to Questions on Director Fiduciary Duties under California Law
by Brenda Brewer Oct. 15, 2015

Oct. 15, 2015

FYI: Resending as some may not have received the original email. From: accountability-cross-community-bounces(a)icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mathieu Weill Sent: Tuesday, October 13, 2015 3:09 AM To: accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Fwd: Memorandum with Responses to Questions on Director Fiduciary Duties under California Law Dear Colleagues, Please find attached the memo from our counsel regarding fiduciary duties. This was request #71, certified on October 6. A very clear executive summary is provided, and I strongly encourage you to read it. Bruce, in your capacity of Board liaison, it would be greatly appreciated if you could share it with the whole Board, as I believe the question is a core concern for Board members. Best Mathieu -------- Message transféré -------- Sujet : Memorandum with Responses to Questions on Director Fiduciary Duties under California Law Date : Tue, 13 Oct 2015 04:09:36 +0000 De : Steven Chiodini <mailto:schiodini@adlercolvin.com> <schiodini(a)adlercolvin.com> Pour : León Felipe Sánchez Ambía (leonfelipe(a)sanchez.mx <mailto:leonfelipe@sanchez.mx> ) <mailto:leonfelipe@sanchez.mx> <leonfelipe(a)sanchez.mx>, Thomas Rickert <mailto:thomas@rickert.net> <thomas(a)rickert.net>, Mathieu Weill <mailto:mathieu.weill@afnic.fr> <mathieu.weill(a)afnic.fr> Copie à : ACCT-Staff (acct-staff(a)icann.org <mailto:acct-staff@icann.org> ) <mailto:acct-staff@icann.org> <acct-staff(a)icann.org>, ICANN-Adler <mailto:ICANN@adlercolvin.com> <ICANN(a)adlercolvin.com>, sidleyicannccwg(a)sidley.com <mailto:sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com> <sidleyicannccwg(a)sidley.com> Dear Co-Chairs and Staff: On behalf of our two firms, we are submitting the attached memorandum with responses to your certified questions on director fiduciary duties under California law, for distribution and posting by you. Best regards, Steven Chiodini, for Adler & Colvin and Sidley Austin LLP ===== Please be aware that this email is intended to provide a short response to the questions posed, without the benefit of legal research. If you would like a more thoroughly considered and researched response, please let us know. ===== Steven Chiodini Of Counsel Adler & Colvin 235 Montgomery Street, Suite 1220 San Francisco, CA 94104 Tel: 415-421-7555 Fax: 415-421-0712 email: schiodini(a)adlercolvin.com <mailto:schiodini@adlercolvin.com> www.adlercolvin.com <http://www.adlercolvin.com> The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at schiodini(a)adlercolvin.com <mailto:schiodini@adlercolvin.com> , and delete all copies of this message and its attachments, if any. Thank you.

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Co-Chairs Statement Leading into ICANN54 in Dublin
by Grace Abuhamad Oct. 15, 2015

Oct. 15, 2015

Hi all, In case you haven¹t seen this yet, please find below a statement from the CCWG-Accountability co-Chairs leading into Dublin. Original Link: https://www.icann.org/news/blog/ccwg-accountability-co-chairs-statement-lead ing-into-icann54-in-dublin CCWG-Accountability co-Chairs Statement Leading into ICANN54 in Dublin Members and participants of the CCWG-Accountability are on their way to Dublin for a full week of intense work and engagement with other ICANN54 attendees. A list of the Enhancing ICANN Accountability-related meetings is available here <https://community.icann.org/pages/viewpage.action?pageId=56134263> . As co-Chairs, we are grateful to the volunteers, support staff, advisors and independent counsel who put up a tremendous effort to prepare for these meetings. They deserve and have earned the community's greatest respect and the deepest recognition. We are very pleased that the analysis of the 93 comments received in the 2nd Public Comment period is now complete. Work Parties (WPs) have produced summaries, analyzed the content of submissions and identified options for the group's consideration. You can find these essential inputs here <https://community.icann.org/pages/viewpage.action?pageId=56136438> . In anticipation of the various meetings, we are providing a rough assessment of our progress through a Scorecard, which can be found below: Report SectionSubtopic WP OwnerStatusRelationship with CWG-Stewardship Requirements 3.1. Revised mission, commitments & core valuesRefine wording of mission & core values based on public comment feedbackWP2To be refinedRepresents the standard of review for the IRP, which is a requirement from the CWG-Stewardship 3.1. Revised mission, commitments & core valuesHuman rights bylaw articleWP4To be considered 4. ³Fundamental Bylaws²ScopeWP2SupportedFundamental Bylaws are a requirement of the CWG-Stewardship 5.1. Independent Review Panel enhancementsWP2To be refinedIRP is a requirement from the CWG-Stewardship 5.2. Reconsideration process EnhancementsWP2To be refined 6. Mechanism to represent the community (community council or other)Implementation model discussionWP1Some disagreementThe mechanism is necessary to provide for the powers required by CWG-Stewardship 6. Mechanism to represent the community (community council or other)Community ForumWP1To be refinedThe mechanism is necessary to provide for the powers required by CWG-Stewardship 6. Mechanism to represent the community (community council or other)Decision making mechanismsWP1Some disagreementThe mechanism is necessary to provide for the powers required by CWG-Stewardship 7.1. Reject Budget/strategyPC2 received some proposals to adjust. Also pending on community mechanism discussionsWP1To be consideredThe CWG-Stewardship requires community rights, regarding elaboration and approval of the budget, especially with relation to IANA 7.2. Reject Bylaw change Details are pending community mechanism discussionsWP1To be refined 4.5. Approve ³Fundamental Bylaw² changeDetails are pending community mechanism discussionsWP1To be refinedCWG-Stewadship requires fundamental Bylaws mechanisms to protect against future changes of accountability mechanisms 7.3. Individual Board Director removalPC2 received some proposals to adjust. Also pending on community mechanism discussionsWP1To be consideredCommunity rights, specifically to appoint/remove members, recall entire Board 7.4. Recall of the ICANN BoardPC2 received some proposals to adjust. Also pending on community mechanism discussionsWP1To be consideredCommunity rights, specifically to appoint/remove members, recall entire Board 9. AoC reviews transcription into the BylawsRefine detailsWP1SupportedCWG-Stewardship requires an IANA Function Review as a ³Fundamental Bylaw² 10. Bylaw changes recommended after stress testsDiscuss ST 18 and refineST-WPSome disagreement 10. Stress Tests (Based on WA 4 and ST-WP work)Some comments received on ST 29 & 30ST-WPTo be refined 11. Items for consideration in Work stream 2 Scope to be defined versus continuous improvement itemsCo-chairsTo be considered 8.3. SO/AC AccountabilityConsider SO/AC AccountabilityWP3To be refined 12. Implementation Plan including TimingCo-chairsTo be refinedReviewed draft started Download a PDF of this Scorecard here <https://community.icann.org/download/attachments/50823981/CCWGACCT%20Scorec ard.pdf?version=1&modificationDate=1444831465505&api=v2> . A significant number of items have a status of ³To be refined,² but we are confident that these refinements can be provided shortly to meet stakeholder expectations. Our hope is that many of these will turn into a ³Supported² status by the end of the Dublin meeting. Areas where more work is needed to reach consensus are in orange and red. Several of these items are related to community powers and have received broad support in principle. However, the implementation model for these powers remains a fundamental discussion. Until a solution is found that does not raise any significant level of objection, these issues cannot be finalized. There have been significant discussions in the last few weeks, on the mailing list as well as during the face-to-face meeting in Los Angeles <https://www.icann.org/news/blog/chairs-statement-from-the-cross-community-w orking-group-on-enhancing-icann-accountability-meeting-in-los-angeles> . These discussions were useful to better understand the various perspectives and the areas where views were diverging. As co-Chairs, we would describe these discussions as follows: * Views in the community differ on the level of enforceability that is Strictly required for the community powers, in light of the CWG-Stewardship conditions <https://community.icann.org/pages/viewpage.action?pageId=53779816> (beginning at paragraph 106). * The CCWG-Accountability has requested legal input to provide more details on the practical differences in terms of complexity, delay or cost associated to the various levels of enforceability. * Significant concerns were raised regarding the weight of the various SOs and ACs in the community mechanism, as well as the ability to opt-in or opt-out of this system. Alternative decision making mechanisms, such as consensus or rough consensus, are being investigated. * The requirement of SO and AC accountability to the global Internet community as a whole has been a key theme of the comments received, although few concrete suggestions are offered (see WP3 documents <https://community.icann.org/display/acctcrosscomm/WP3+Documents> ) * A 2-phase scenario to implement community empowerment is being investigated, which could help accommodate some of the concerns related to the significance of the changes proposed by the CCWG-Accountability 2nd Draft Report. The CCWG-Accountability is fully mobilized and committed to make great strides during the Dublin meeting. We are aware that the finalization of our recommendations is the last missing piece in the IANA Stewardship Transition puzzle and we take this responsibility very seriously. We will welcome in Dublin all contributions to this bottom-up, multistakeholder, consensus driven process. All hands on deck! Looking forward to a productive week in Dublin! CCWG-Accountability co-Chairs Thomas Rickert León Sanchez Matheiu Weill

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Shuttle Information for Saturday 17 October
by Grace Abuhamad Oct. 15, 2015

Oct. 15, 2015

Dear all, We have arranged shuttles to transfer CCWG / ALAC / GNSO members for their Saturday 17 October meetings. You can find below the schedule. 17 October 2015 Shuttle route Jurys Inn Christchurch Jurys Inn Parnell Street CCD 07:30 pick up from Jurys Inn Christchurch 07:45 pick up from Jurys Inn Parnell Street 08:00 Arrive to CCD 08:15 pick up from Jurys Inn Christchurch 08:30 pick up from Jurys Inn Parnell Street 08:45 Arrive to CCD 09:00 pick up from Jurys Inn Christchurch 09:15 pick up from Jurys Inn Parnell Street 09:30 Arrive to CCD Return from CCD to Jurys Inn Parnell Street and Jurys Inn Christchurch 18:00 18:45 Thank you, Grace

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Shuttle Information for Friday 16 October
by Grace Abuhamad Oct. 15, 2015

Oct. 15, 2015

Dear all, We have arranged shuttle for CCWG member's Friday 16 October F2F meeting. Please find below the pick up and return times. 16 October 2015 07:45 pick up from Jurys Inn Christchurch to CCD 19:00 return from CCD to Jurys Inn Christchurch Thank you, Grace

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URS and Stress Test
by Dr Eberhard W Lisse Oct. 15, 2015

Oct. 15, 2015

Steve (del Bianco) which stress test would apply to the (your) below? https://www.icann.org/en/system/files/files/reconsideration-request-15-19-i… greetings, el -- Sent from Dr Lisse's iPad mini

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NRO Statement on IANA Stewardship Transition and ICANN Accountability
by Athina Fragkouli Oct. 14, 2015

Oct. 14, 2015

Dear all, I would like to inform you that the NRO published a statement on IANA Stewardship Transition and ICANN Accountability. The statement is available here: https://www.nro.net/news/nro-statement-on-iana-stewardship-transition-and-i… Thank you for your attention. Kind regards, Athina Fragkouli ASO representative

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Reading List for Dublin
by Brenda Brewer Oct. 14, 2015

Oct. 14, 2015

Hello everyone! In preparation for ICANN54 in Dublin, CCWG-Accountability has prepared a reading list. You may view the Wiki page: https://community.icann.org/x/qqpYAw or you may see the attached zip file with the documents. Also, watch this Wiki page for ICANN 54 Meeting information and updates related to CCWG; https://community.icann.org/x/d4pYAw Please let me know if you have any questions. Kind regards, Brenda

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Documents attached - Reading List for Dublin
by Brenda Brewer Oct. 14, 2015

Oct. 14, 2015

Hello all, The attached file includes the documents for the Dublin Reading List. Thank you. Brenda From: Brenda Brewer Sent: Wednesday, October 14, 2015 7:44 AM To: accountability-cross-community(a)icann.org <mailto:accountability-cross-community@icann.org> Subject: Reading List for Dublin Hello everyone! In preparation for ICANN54 in Dublin, CCWG-Accountability has prepared a reading list. You may view the Wiki page: https://community.icann.org/x/qqpYAw or you may see the attached zip file with the documents. Also, watch this Wiki page for ICANN 54 Meeting information and updates related to CCWG; https://community.icann.org/x/d4pYAw Please let me know if you have any questions. Kind regards, Brenda

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Dublin schedule changes and work plan
by Mathieu Weill Oct. 14, 2015

Oct. 14, 2015

Dear Colleagues, AC/SO leaders held a call with ICANN staff this morning. There was broad agreement to select the moderate plan for changing schedules in Dublin. It’s known as Option B, shown in attachment and below. We are grateful to the SO/AC leaders and Icann staff for their flexibility. The CCWG remains in charge of deciding how best it plans to use these slots. Some logistical constraints are however to be expected due to the room arrangements. The co-chairs suggest the following tentative rough agenda for the set of Dublin meetings, for your consideration and feedbacks during the call in a few hours: - Friday : finalize public comment assessment based on WP outcomes, list areas of consensus and refinements, identify a candidate way forward on outstanding issues - Saturday : break out sessions facilitated by XPlane to flesh out candidate way forward - Monday : Review and refine outcome of break out sessions, initial assessment of timeline for finalization of report - Tuesday : SO/AC engagement (not a CCWG session as such) - Wednesday : Taking stock of SO/AC engagement, further refinements - Thursday : Taking stock ; finalizing work plan beyond Dublin including timeline. Best regards, Mathieu PS: Please accept my apologies for not attending the meeting later today, due to a conflicting commitment Option B: Moderate Change to ICANN54 Schedule Adding onto Option A, for increased cross-community discussion the SO-AC-SG-RALO Community Roundtable on Friday, 16 October will be cancelled so that all participants of that meeting are able to attend the CCWG-Accountability Working Session that day for the last 3 hours. In addition, the main Auditorium on Monday, 19 October will be rescheduled to allow for a full afternoon of cross-community accountability discussions. Additionally, time slots will also be made available to provide working sessions for the CCWG-Accountability. To not interfere with any Board-SO/AC interactions on Wednesday, as many as possible will move to an extended Constituency Day schedule on Tuesday, 20 October. -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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