October 2015 - Accountability-Cross-Community

Notes-Recordings-Transcript links for CCWG ACCT Meeting #58 - 6 October
by Brenda Brewer Oct. 6, 2015

Oct. 6, 2015

Hello all, The notes, recordings and transcripts for the CCWG ACCT meeting #58 - 6 October will be available here: https://community.icann.org/x/3JxYAw A copy of the notes and action items may be found below. Thank you. Kind regards, Brenda Action Items ACTION ITEM - Steve DelBianco to reach out to Thomas Schneider to enquire about status of language. ACTION ITEM - Bruce Tonkin - in Board liaison capacity - to get back to CCWG on advanced notice and to clarify process. ACTION ITEM - Legal counsel to identify memos that address GAC related issues/questions ACTION ITEM - Cochairs to send an outline of certified questions to lawyers. ACTION ITEM - Identify relevant part of memo that addresses specifically MEM concern and share with Board so we are clear about legal aspects. ACTION ITEM - Steve DelBianco Jonathan Zuck and Kavouss Arasteh to hold short briefing with legal counsel on plan B proposal so that it can be fleshed out and lead to a more detailed discussion. Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Please be kindly reminded to fill in your statement of interest. Status updates Oct 12 is the deadline for WP papers. They will be added to the reading list for Dublin. We have increased Board participation in WP calls. Kudos to volunteers. We look forward to prepared summaries for Dublin. WP 1 We have been working through analysis of public comments. Next call will deal with public comments received on community forum, sole member model, Bylaws and removal of individual directors. We will also need to conduct a second reading of public comments. We will have set of issues to discuss by Dublin meeting. We may need an additional call. WP2 We have worked on issues related to mission, core values, IRP. We will have write-ups for discussion in Dublin. We will need to schedule an additional call. WP3 We will be holding a call later today. We will use Jonathan Zuck's model to assess Work Stream 2 items. WP4 We will be holding a call later today/tomorrow. We have assigned work to volunteers who are following Jonathan Zuck model to assess comments received on human rights. ST-WP A call will be held tomorrow to compile and analyze comments received. Some comments recommend that we dive deeper. Comments also focus on stress tests 21, 29, 30. ACTION ITEM - Steve DelBianco to reach out to Thomas Schneider to enquire about status of language. Feedback; - Too many calls and low attendance on calls. To what extent are WPs taking into account Board comments and outcome of LA meeting? --> Work parties are not decision-making bodies. It is important to take into account Board comments as much as other comments. They need to be properly assessed and taken into account. Transparency on Board briefing This is a follow-up on conversation held on public list. Cochairs wrote to Steve Crocker after LA meeting on Sept 28. It was suggested that Board meetings on accountability as well as communications would benefit from being public. Steve agreed to share briefing materials, have Cochairs brief Board on new developments and would look into adjusting schedule to enable further changes. Are additional steps required or have we adequately conveyed this? Feedback: - Was this based on specific advice from counsel and if so, could that be shared with group. - There was a Board informational call today. If there is any specific advice, it will be shared. Could inform you of upcoming informational calls and topics discussed. ACTION ITEM - Bruce Tonkin - in Board liaison capacity - to get back to CCWG on advanced notice and to clarify process. Legal Requests We would like to certify questions sent on list with respect to fiduciary duties, SO/AC rights to select directors. They will be sent in a separate email. Legal counsel will also be requested to kick off drafting of AoC reviews Bylaws. A document was received from ICANN legal but it was sent back as we need a redline. We will be beginning work with our legal advisors. Feedback: - Clear description needed. Under what conditions is a judgement available should Board decide to participate in IRP - could you clarify if certified? We have concerns that we are limited to participate in these discussions. When silent on issue, it does not mean we are in agreement. ICANN legal is not on a similar restriction. We are waiting for questions to be certified to weigh in. On bylaws drafting, we have received draft. Language CCWG has been working on has been dropped into bylaws and it is not clear that there have been additional changes. --> IRP related question will be included in certified questions. Weighing in on list on previously certified questions is OK. It would be useful for you to flag these moving forward so that we can keep track of costs. - Emphasis on certification is too constraining. Certification is important but if there is response that can be made in real time, we would benefit from having counsel being able to speak. --> We will require lawyers to flag any uncertified questions. - Should we consider certifying question about whether ICANN as it stands now is already a designator model. It could be useful to task our lawyers to further analyze whether current model is a designator model. --> This clarification would be welcome. Conclusion: counsel can respond to follow-up questions to already-certified questions, when no additional research or significant drafting is required ACTION ITEM - Legal counsel to identify memos that address GAC related issues/questions ACTION ITEM - Cochairs to send an outline of certified questions to lawyers. Summary of recent email list discussions Objective is to share perspectives on discussions. Key issue for several stakeholders is whether SO/ACs are sufficiently accountable to global internet community to be provided with community powers and ultimate enforceability of these powers. We still don't have definition of what kind of changes would be needed to SO/AC structure to make it acceptable. There is also a lot of discussion regarding voting. We are seeing a lot of traction on investigating model based on consensus. We are seeing acknowledgement that it will be difficult to convince that membership of model needed. Designator model is getting traction. Steve Crocker's email made it clear that it would not be acceptable. Suggestion was made on list: membership is means to achieve enforceability but if we can get to enforceability without membership, we can get our job done. Board supports community powers. Plan B would be to activate membership gene. Feedback: - Was there significant public comment on the Second draft report to the effect that SOs and ACs are not accountable enough to support the sole member model? --> Due diligence has not been conducted yet. It is definitely not unrooted from concerns raised in public comment. - Concerns that model needs to be tested first. We need stability. - Board broadly support focus on finishing details for enforceable powers. We should continue to work on refining powers, IRP process to make sure community has a way to hold Board to account. If we focus on enforcement it can be a constructive discussion. - Can we come up with enforceable powers or not? Our principle goal is empowerment of community. - Plan is a good start and should be taken into consideration. Voting is a concern - in favor of consensus. - We have to look at a number of realities. CCWG proposal must be approved by COs and Board will need to implement new Bylaws. If Board believes it is not interest of ICANN, it will not get done. We need dialogue between Board, lawyers, CCWG. --> We are working on revised timeline that will inform discussion. - None of us know what will be approved by SGs. We don't have consensus in community on model yet. It is what we should be focusing on first. If Board advises on what it wants to see - can get to a constructive discussion - Constraint of what Board will approve is important. - We have a time constraint. Suggestion that Jonathan and/or Steve write clear proposal and seek whether this can be acceptable or not. It would enable us to go to Dublin with something we can elaborate on. - We should first try to stay within Boad redlines and try to deliver. If we find it impossible, we should go outside these lines. If we show that we cannot deliver powers and enforceability we agree on - within the existing structure. We should first see whether we can deliver. - We need to be careful in how we define redlines. We have been tasked to develop a consensus based proposal developed through bottom up. Is it community based if Board is limiting options? We need to be open in what we would like to see and addressing concerns, - We need to decide which direction we want to go into. - It is up to lawyers to articulate degree of enforceability with or without designator. A consensus of AC/SOs could trigger it at any time. Would welcome input around governance review. Intention is to activate gene of membership. --> if a consensus of SO/AC triggers governance review, what if the Board disagrees? How would that be enforceable? --> It would take 2/3 of Board majority to reject it. If we still want to convert to a membership it would require 3/4 of Board to reject. This means we would recall Board. - We should not make enforceability a complex question. It ought to be factually driveable and we could build proposal around these facts. - We have to find way forward. We have to see to what extent we need to improve that. Let's work on Steve's approach. - Convergence would be two parallel tracks: 1) Conversation from Jonathan and Steve; 2) Work of WPs with Board participation. We should be further refining requirements for community powers taking into account comments. Discussion on diversity is key to exercise. It might help for future conversations on model. When considering decision-making process for exercising community powers, if we strive for consensus to address any concerns of capture, we will be able to see what legal vehicle is needed to implement this. Conclusion: follow up on this conversation on list. We will try to take stock of exchanges of emails. We will need to assess in which areas various models would be enforceable as well as how a second phase become acceptable - what would be the conditions that would trigger second review i.e. what would imply conditions that are met for second review. Board is asking for enforceability, not trust. - There is no agreement on enforceability. We want a certain set of requirements to be met - ask law firms to work on that and to get back to you with text. Happy to work on requirements And to organize a call with lawyers to agree on framework. ---> Instructions to lawyers would not be as clear as private. We are in multistakeholder process. There is still refinement and gaps to bridge in that regard. * We have attempted to keep it simple per NTIA criteria but some think it is not enforceable. --> Disagreement between lawyers on enforceability on MEM - what does it mean for trust in enforceability? It has not been clearly conveyed to Board what concern is. ACTION ITEM - Identify relevant part of memo that addresses specifically MEM concern and share with Board so we are clear about legal aspects. - A shared comparison of IRP compared to second draft proposal may help shed light. Binding arbitration is binding. What do you need to have to get to binding. Under some legal mechanisms some powers are not available in same way. We need to rely on direct enforcement powers. Power to recall Board and remove directors can be powerful. You need to make sure u do it in legally enforceable way. We designed legal models around how we best achieve legally enforceable powers. Legal mechanisms and enforceability are all intertwined. --> If we choose ability to remove directors, and then there is a dispute process, does the mechanism as proposed by MEM give ability to remove directors enforceable? ---> There is risk in terms of enforceability. How is that right expressed? Is it a designator right or is it expressed in a different way. Who has standing to enforce right. Challenges and uncertainties are greater. ----> Third parties can be given rights but it remains to be seen how stable it is to enforce these rights. If you don't know legal person enforcing rights, it might be in theory enforceable but there might be a lot of barriers. They can't enforce other people's rights. Underlying issue of MEM predates. Did it come into existence. It has claim. Ongoing unincorporated association are a legal person at any relevant time. It is one last issue that could be raised. Are they going to be willing to put themselves in line and go through litigation to make sure this right is enforced. Our assessment is that MEM is limited. - Board proposed that Chairs be enforcers. We look at that and discouraged it Chairs may not want to take legal responsibility; until we see it model is under question. Conclusion - Core issue is not about legal/model - it is about conclusion of mutual accountability and sharing of stewardship. Balance has to be moved but Board does not see what we were seeing. We need a way to get enforceable powers and not forget underlying expectation that enhancement include significant work on core issue. ACTION ITEM - Steve DelBianco Jonathan Zuck and Kavouss Arasteh to hold short briefing with legal counsel on plan B proposal so that it can be fleshed out and lead to a more detailed discussion. AOB - There are two upcoming coordination meetings: 1) transition facilitation program call: monthly call scheduled in July with various groups including NTIA; 2) call with SO/AC leaders including update to SO/AC Chairs for them to organize planning for Dublin sessions. - Any question from lawyers should come to Cochairs and we should have list of questions that have been answered or not so there is diligent tracking.

1 0

question on fiduciary duties and their objectivity
by Jorge.Cancio＠bakom.admin.ch Oct. 6, 2015

Oct. 6, 2015

Dear all, During the debates we had on the last conference call I put forward a question which I feel could be important to better understand under Californian corporate law. This is whether there are any means to subject the exercise of "fiduciary duties" (by the Board) to objective standards. As I have understood the discussion so far, the membership model allows the member to override "fiduciary duties" of the Board. However the member itself has no fiduciary duties vis-à-vis the organization. On the other hand, fiduciary duties are apparently a useful tool within corporate law, as it imposes a duty to care for the welfare of the whole of the organization. The argument which is made by some, as far as I understand it, is that there is however a problem in the exercise of "fiduciary duties" as it would provide the Board with an "arbitrary" power, e.g. to override community decisions (in exercise of community powers) without being bound to any objective standards. Considering all this, my question (to the Lawyers, if this is certified as a question to them) would be: is there any means under Californian Law (or other US jurisdictions...) that would allow to subject the exercise of fiduciary duties to objective standards? (e.g. be it through concretizing these duties in the Bylaws, subjecting them to arbitration, imposing special requirements on the rationale needed to be provided if they are used to override community decisions, or, for instance, imposing extra-supermajorities in the Board in order to being able to invoke such duties?) Hope this helps, Regards Jorge

13 29

Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal
by Gregory, Holly Oct. 6, 2015

Oct. 6, 2015

Dear Co-Chairs, On the CCWG-ACCT call earlier this morning, a member of the ICANN Board requested that we point out where our discussion of enforceability relating to the MEM can be found. We have attached it above. We suggest that the Memo above comparing the Board Proposal to the CCWG 2nd Draft Proposal provides the most concise discussion. We have also included the Slides that compare the Sole Member, Sole Designator and Board Proposal on issues of community powers and enforceability. You may wish to send these materials to the Board. We leave that to you. We also are awaiting comments from Jones Day and ICANN Legal on a comparison of the current IRP, IRP as proposed in the CCWG 2nd Draft Proposal and the IRP and MEM as described in the Board’s Proposal. Once we receive their comments we will review and revise and provide that comparison to you. Please note that as emphasized on the call this morning and in the Memo and Slides above, the issues of legal structure, scope of community powers and the degree of enforceability are inter-related. As you know, these complex issues have been a dominant focus in CCWG’s deliberations to date, and as a result there is a wealth of other relevant material that has been generated about various options. Kind regards, Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> ---------- Forwarded message ---------- From: Gregory, Holly <holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com>> Date: 23 September 2015 at 14:04 Subject: [Acct-Legal] Comparison of CCWG CMSM Proposal and ICANN Board MEM Proposal To: "thomas(a)rickert.net<mailto:thomas@rickert.net>" <thomas(a)rickert.net<mailto:thomas@rickert.net>>, "mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>" <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>>, León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>>, "ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5(a)icann.org<mailto:ccwg-accountability5@icann.org>>, Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>>, Grace Abuhamad <grace.abuhamad(a)icann.org<mailto:grace.abuhamad@icann.org>> Cc: Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com<mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN(a)adlercolvin.com<mailto:ICANN@adlercolvin.com>> Dear Co-Chairs, Members and Participants of CCWG, Attached please find three documents to assist in preparation for our meeting in L.A.: • A memo from Sidley and Adler with our high level observations regarding comparison between the Board Proposal and the CCWG Proposal. • A Summary Comparison of Key Characteristics of CMSM Model and Board Proposal – this or something along these lines will be expanded out in the next several days to include the Sole Designator model as requested on today’s call • Comparison of CCWG 2nd Draft Proposal (Community Mechanism as Sole Member) and ICANN Board Proposal (Comparison) We look forward to seeing you in L.A., Holly and Rosemary HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Ccwg-accountability5 mailing list Ccwg-accountability5(a)icann.org<mailto:Ccwg-accountability5@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability5<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.internetnz.nz&d=BQM…> A better world through a better Internet

2 1

RV: A way to avoid the 'The Single Member Can Do Anything!' problem
by Perez Galindo, Rafael Oct. 6, 2015

Oct. 6, 2015

Let me chime in to recall everyone that NTIA expects the “global multistakeholder community” to replace its role. Hence, concentration of power in parts of the community and risk of capture should be avoided at any rate, and that applies to all and every stakeholder in this environment. The GAC has already expressed that a model subject to capture by specific interests should not be approved. The Sole Member (or whatever other Community organization or mechanism is devised to empower the community) should only make decisions supported by most of the stakeholders (be it via voting or be it via positioning). Otherwise, the CCWG proposal would jeopardize the fulfillment of NTIA’s first condition (“support and enhance the multistakeholder model”) as it would be in practice substituting the NTIA by a subset of stakeholders. That is something we should avoid if the transition is to take place. Best Rafael De: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] En nombre de Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviado el: miércoles, 30 de septiembre de 2015 10:44 Para: james(a)cyberinvasion.net<mailto:james@cyberinvasion.net>; kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>; jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> CC: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Asunto: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem Community powers only are meaningful if they represent the “community” as a whole, which is the collective we want to empower to check the power exercised by the executive power designated to represent that same community. That’s the key point. And I would beg you to avoid qualifying opinions different to yours as “autocratic” or the like. Regards Jorge Von: James Gannon [mailto:james@cyberinvasion.net] Gesendet: Mittwoch, 30. September 2015 10:36 An: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>; jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> Cc: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem I have said it before and will repeat it here again, it is not our place to force parts of the community into exercising a vote, our voting thresholds should reflect variable participation to allow groups such as the SSAC and RSSAC to participate when they feel the need to, but we should not be forcing any part of our community into a role that they do not wish to have. To do so is in my mind autocratic and does not reflect the wishes of these groups as expressed through the bottom up multistakeholder process. -James From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" Date: Wednesday 30 September 2015 09:22 To: "kavouss.arasteh(a)gmail.com<mailto:kavouss.arasteh@gmail.com>", "jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>" Cc: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem Kavouss makes a vital point here. Any decision-making process needs to be absolutely capture-proof and respect the diversity of the ICANN community. Hence, large supermajorities and/or consensus might be required for such important decisions. This means that those large supermajorities have to be measured against the community as a whole (i.e. the seven SO/AC). Regards Jorge Von: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Kavouss Arasteh Gesendet: Mittwoch, 30. September 2015 10:15 An: Jordan Carter <jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Cross Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Betreff: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem Dear All, I also understood Fadi in LA expressing a concern on how do we ensure ..in the single member model, that we have inclusion in consensus, rather than allowing a subset of the community to exercise that power without the Full acceptance of the community..and that can easily be construed as a capture scenario that needs to be stress tested. Let us take a scenario as follows There is a potion to reject the Budget. Petition is agreed ( not voted ) in the petition SO Then it is discussed at Forum Then put it for voting SAS,RSSAC and very likely GAC do not participate in voting Very probably all 3 OCs participate in voting . ALAC may or may not to do so if three OCs vote ,the super majority would be 2/3 thus out of 15 votes currently foreseen 10 is enough to reset or ,at extreme, veto the budget . Then out of 29 overall weighted /weighting votes 10 succeeded to veto the budget and start an unnecessary process of back and fort of the Budget for months Is that a right process? However, if we first establish a quorum for decision making with fairly high threshold ( 3/4 or 4/5 of the 7 SOs and ACs ) which means 5 SOs and ACs or 4 SOs and ACs are the minimum requirement of quorum to decide on the matter . Then we have to apply the super majority of votes which means 2/3 of 25 or 2/3 of 22 or 2/3 of 19 , depending on the SOs and ACs participating which becomes 17, 14 and 12 votes out of 29 votes are sufficient to reject the budget .This would result in a real capture of the community by a small number of subset of that community. Consequently, should we replace the voting by consensus then we are better saved . In view of the above the decision making process voting versus consensus building needs to be seriously re-examined Kavouss 2015-09-30 9:40 GMT+02:00 Jordan Carter <jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>>: Tapani: The approach I have suggested could work for none, any or all of the statutory powers. If it is worth exploring we can explore it. There might be some statutory rights that should not be subject to this approach, as Ed has argued. To address Kavouss' point: Kavouss, I agree with you this is unusual. I would not suggest this for any of the accountability powers we have suggested through the CCWG. I would only suggest it as a cast-iron, impossible-to-avoid, last-resort for powers that AREN'T about accountability. Dissolving ICANN, to pick the example repeatedly raised by Board members in LA, isn't an accountability issue. So let's not treat it as one. To put it another way: some of the powers of a Member in the law of California [or under any other law, should ICANN's jurisdiction change at some point] are clearly about accountability. Some of them aren't. The ones that aren't about accountability, the ones that pose some kind of risk to stability or that just aren't relevant, we can make impossible to use. We can make them even more impossible to use by including the Board as a participant for any decision to use them. All food for thought. best Jordan On 30 September 2015 at 19:36, Tapani Tarvainen <ncuc(a)tapani.tarvainen.info<mailto:ncuc@tapani.tarvainen.info>> wrote: This is worrysome. While I can understand the concern about things like dissolving the company, what's the issue with document inspection? After all, transparency is one of the key elements of trust, and trust is ultimately what will sustain or kill ICANN. Perhaps some of the lawyers among us could explain what bad could result from document inspection power of the member? -- Tapani Tarvainen On Sep 29 20:48, Rudolph Daniel (rudi.daniel(a)gmail.com<mailto:rudi.daniel@gmail.com>) wrote: > "the other powers the California law grants to member/s (document > inspection, dissolve the company, etc), should face such high thresholds to > action that they can, practically speaking, never be actioned at all." > > Yes , interesting, I understood Fadi today expressing a concern (my take on > it)....how do we ensure ..in the single member model, that we have > inclusion in consensus, rather than allowing a subset of the community to > exercise that power without the Full acceptance of the community..and that > can easily be construed as a capture scenario that needs to be stress > tested. > > Interesting take on the problem Jordon, but as you suggest...over to the > legal minds.. > RD > On Sep 29, 2015 8:15 PM, "Jordan Carter" <jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: > > > Hi all > > > > One of the pieces of feedback from Board members I heard in L.A. was a > > concern that basically goes like this: > > > > "The Single Member is a problematic idea because of the incredible powers > > it has under California law - for instance, it could even dissolve ICANN!" > > > > There were some sub-themes to this concern: > > > > - the accountability of SO/AC actors in exercising the powers intended for > > the CMSM > > - the absence of fiduciary duties on the Single Member in making its > > decisions > > - the engineering principle of minimal change at a time > > > > > > Focusing on the overarching concern, it was a tenet of the CCWG's Second > > Draft Proposal that the CMSM should be largely ruled out from exercising > > any of the powers the community didn't propose it had. > > > > That is, aside from the five community powers and the ability to enforce > > the bylaws against the Board, the other powers the California law grants to > > member/s (document inspection, dissolve the company, etc), should face such > > high thresholds to action that they can, practically speaking, never be > > actioned at all. > > > > [The Second Draft Proposal may not have been terribly clear about this, > > but that's what it was driving at.] > > > > > > So how to resolve this? The CCWG's choice of a Single Member (following > > its earlier choice of multiple members) was to meet the accountability > > requirements the community has asked for. But nobody asked for the > > community to have these other powers. > > > > *Here is a suggestion.* > > > > *For the exercise of any of the Member Powers the CMSM would have (beyond > > those we "want" it to have), why don't we include the ICANN Board as one of > > the groups that has to vote / come to consensus to exercise them?* > > > > This sounds a little strange on the face of it but think it through. > > > > This seems to me to be a very simple way to avoid the problem. > > > > It acknowledges that the rights of the Member are set out in law and can't > > be eroded - that they can only be managed by the decisions that member is > > able to take. And it acknowledges that the concerns about constraining the > > possible actions of the member to those that are intended, should be > > solved. It shares power in the model in quite a nice, dare-I-say-it, > > "multistakeholder" way. > > > > I'd welcome others' thoughts. I'd welcome views from our lawyers about > > this, too. On the face of it I can't see any reason this wouldn't work in > > law, since the CMSM can be comprised of any set of ICANN actors. But - I Am > > Not A Lawyer. > > > > > > cheers > > Jordan > > > > -- > > Jordan Carter > > > > Chief Executive > > *InternetNZ* > > > > +64-4-495-2118 (office) | +64-21-442-649 (mob) > > Email: jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> > > Skype: jordancarter > > Web: www.internetnz.nz<http://www.internetnz.nz> > > > > *A better world through a better Internet * _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

9 15

Regarding Fiduciary responsibility of the Board
by Bruce Tonkin Oct. 6, 2015

Oct. 6, 2015

Hello Nigel, >From the link you have provided: " A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence." At a straight legal level ICANN is a nonprofit public benefit corporation. So at the highest level ICANN is for public benefit. Our Articles of Incorporation - then defines the purpose in more specific terms including as you mentioned: - pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet and - operate for the benefit of the Internet community as a whole I know from discussions we have had at the Board - that this is how Directors and Liaisons think of their role on the Board. In fact a key part of the training delivered to any incoming Board members from an SO and AC, is that their duty is to the Internet community as a whole now rather than just their home SO or AC. I think it is very clear who the Board acts for in the Articles of Incorporation, but I do note that the bylaws are less clear on the fiduciary duty of the Board in this regard, and that is certainly something that could be improved. Regards, Bruce Tonkin

4 4

Questions certification
by León Felipe Sánchez Ambía Oct. 6, 2015

Oct. 6, 2015

Dear Holly, dear Rosemary, We would like to certify the following questions to your teams: - What are a director’s fiduciary duties to a California nonprofit public benefit corporation? What is the relationship between these duties and the mission of the corporation? - under ICANN's current structure, do SOs and ACs have legal rights to select directors in line with designator rights under the California statute? - Is there any means under Californian Law that would allow to subject the exercise of fiduciary duties to objective and controllable standards? For example, could the following or similar means be acceptable and usable under Californian law: · concretizing these fiduciary duties in the Bylaws; · subjecting their correct interpretation to arbitration; · imposing special requirements on the rationale needed to be provided if they are used to override community decisions; · imposing extra-supermajorities in the Board in order to being able to invoke such duties? - What is the availability of default judgments should the Board refuse to participate in an IRP? We would also like to ask you to kindly point us to the memos in which the questions raised by Rafael Pérez Galindo in an e-mail as follows: "In conclusion, I kindly ask the Co-Chairs to forward these questions to the CCWG legal advisors about (1) ability, (2) legal implications and (3) liabilities of governments if they took part as voting members in the community mechanism to be deployed under CA jurisdiction. An answer should be provided for the three models under discussion (SMM, Single designator and MEM)." Also, we would like to ask you to begin drafting bylaws that include the AoC in them so we can continue with the bylaw drafting process we have been waiting to begin on ICANN legal’s side with no success so far. Please let us know whether you need any clarification on the certified questions. Also please kindly provide an estimate date of delivery so we can keep track and update our Group. Best regards, León, Thomas and Mathieu

2 2

Re: [CCWG-ACCT] Additional time in Dublin
by Roelof Meijer Oct. 6, 2015

Oct. 6, 2015

I cannot do Saturday 17-10, Fray and Thursday will work Cheers, Roelof From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Alice Jansen <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> Date: donderdag 1 oktober 2015 00:13 To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Additional time in Dublin Dear all, Further to the request for additional time in Dublin, ICANN staff has enquired about availability and identified three potential suggestions/options for your consideration: * We can extend your Friday, 16 October session to 08:30-18:30 (instead of the 09:00-17:00); * A full day session can be scheduled for Saturday, 17 October. Please note: the ICG has a session planned for 13:00 to 17:00 and some of you may not be in a position to join due to other sessions running simultaneously; * We can extend your Thursday AM session to 08:00-11:45 (it is currently scheduled 08:00-10:00). The CCWG-Accountability Cochairs invite you to raise any concerns or objections you may have on the list. For planning purposes, concerns should be flagged by 1 October – 23:59 UTC. Thanks, Best regards Alice

1 0

AGENDA - Call #58
by Alice Jansen Oct. 6, 2015

Oct. 6, 2015

Dear all, In anticipation of your call #58<https://community.icann.org/pages/viewpage.action?pageId=56138972> <https://community.icann.org/pages/viewpage.action?pageId=56138972> - Tuesday, 6 October from 06:00-08:00 UTC (time converter<http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&…>), please find below a proposed agenda: 1. Welcome, Roll Call, SOI 2. Status updates * WP1 * WP2 * WP3 * WP4 * Stress Tests 3. Transparency on Board briefing 4. Legal requests for certification 5. Summary of recent email list discussions 6. A.O.B Thank you, Kind regards Alice

2 1

Continued Counsel Dialogue & IRP/MEM Comparison
by Gregory, Holly Oct. 6, 2015

Oct. 6, 2015

Dear CCWG Members and Participants, We provided to Jones Day and ICANN Legal this evening a draft comparison of the current IRP, the IRP as proposed in CCWG’s second proposal and the IRP and MEM proposal from the Board with a request that they review and let us know of any corrections regarding out description of the Board proposal, as set forth below. We hope to receive and review their comments in the next day and circulate the comparison to you all later Tuesday or early Wednesday. Kind regards, Holly and Rosemary HOLLY GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> From: Gregory, Holly Sent: Monday, October 05, 2015 10:21 PM To: 'Kate Wallace' Cc: jlevee(a)jonesday.com; Lizanne Thomas; Kevin B Espinola; John Jeffrey; samantha.eisner(a)icann.org; mathieu.weill(a)afnic.fr; thomas(a)rickert.net; leonfelipe(a)sanchez.mx; Rosemary E. Fei; Sidley ICANN CCWG; ICANN(a)adlercolvin.com Subject: Continued Counsel Dialogue & IRP/MEM Comparison Dear Kate, Please let us know when you would like to schedule our next call to continue our dialogue. We are eager to find ways to close the gaps between the views of the legal teams as we expressed in our note to you on Friday. Also, we are attaching for your review and comment a draft comparison of the independent review mechanisms that have been proposed, including both the IRP in its various iterations and the MEM. This comparison is not intended in any way to advocate for a position but rather to convey what the key differences are in the different approaches. We appreciate any corrections you may have as to the Board proposal and we apologize if we have not captured it accurately in any respect. Please note that we would like to provide this to the CCWG by late tomorrow or early Wednesday. We recognize that this is a short time frame, but as you know we are under some time pressures. If this poses difficulties please let us know. We have copied the Co-Chairs on this draft but do not intend to circulate it more broadly until you have had an opportunity to review and comment. Kind regards, Holly and Rosemary HOLLY GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP +1 212 839 5853 holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com> From: Kate Wallace [mailto:kwallace@JonesDay.com] Sent: Thursday, October 01, 2015 11:49 PM To: Gregory, Holly; Rosemary E. Fei Cc: Lizanne Thomas; jlevee(a)jonesday.com<mailto:jlevee@jonesday.com>; Kevin B Espinola; John Jeffrey; samantha.eisner(a)icann.org<mailto:samantha.eisner@icann.org> Subject: Continued Counsel Dialogue Dear Holly and Rosemary, In an effort to continue our dialogue, please see the attached document responding to some of the issues raised in the slides you distributed on 29 September 2015. Thanks, Kate Kate Wallace Partner JONES DAY® - One Firm Worldwide℠<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.jonesday.com_&d=CQM…> 555 S. Flower Street, 50th Floor Los Angeles, California 90071 Office +1.213.243.2536 kwallace(a)jonesday.com<mailto:kwallace@jonesday.com> ========== This e-mail (including any attachments) may contain information that is private, confidential, or protected by attorney-client or other privilege. If you received this e-mail in error, please delete it from your system without copying it and notify sender by reply e-mail, so that our records can be corrected. ========== **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

1 0

A way to avoid the 'The Single Member Can Do Anything!' problem
by Jordan Carter Oct. 5, 2015

Oct. 5, 2015

Hi all One of the pieces of feedback from Board members I heard in L.A. was a concern that basically goes like this: "The Single Member is a problematic idea because of the incredible powers it has under California law - for instance, it could even dissolve ICANN!" There were some sub-themes to this concern: - the accountability of SO/AC actors in exercising the powers intended for the CMSM - the absence of fiduciary duties on the Single Member in making its decisions - the engineering principle of minimal change at a time Focusing on the overarching concern, it was a tenet of the CCWG's Second Draft Proposal that the CMSM should be largely ruled out from exercising any of the powers the community didn't propose it had. That is, aside from the five community powers and the ability to enforce the bylaws against the Board, the other powers the California law grants to member/s (document inspection, dissolve the company, etc), should face such high thresholds to action that they can, practically speaking, never be actioned at all. [The Second Draft Proposal may not have been terribly clear about this, but that's what it was driving at.] So how to resolve this? The CCWG's choice of a Single Member (following its earlier choice of multiple members) was to meet the accountability requirements the community has asked for. But nobody asked for the community to have these other powers. *Here is a suggestion.* *For the exercise of any of the Member Powers the CMSM would have (beyond those we "want" it to have), why don't we include the ICANN Board as one of the groups that has to vote / come to consensus to exercise them?* This sounds a little strange on the face of it but think it through. This seems to me to be a very simple way to avoid the problem. It acknowledges that the rights of the Member are set out in law and can't be eroded - that they can only be managed by the decisions that member is able to take. And it acknowledges that the concerns about constraining the possible actions of the member to those that are intended, should be solved. It shares power in the model in quite a nice, dare-I-say-it, "multistakeholder" way. I'd welcome others' thoughts. I'd welcome views from our lawyers about this, too. On the face of it I can't see any reason this wouldn't work in law, since the CMSM can be comprised of any set of ICANN actors. But - I Am Not A Lawyer. cheers Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

28 75