October 2015 - Accountability-Cross-Community

Re: [CCWG-ACCT] Personal thoughts on sole member
by Kavouss Arasteh Oct. 4, 2015

Oct. 4, 2015

Bruce Thank you much for your vision and thoughtful messages You are now becoming the most vocal Board Member in this regard for which I personally thank you . However, It is difficult to really understand your position. On the one hand you severely and strongly supporting MEM One other hand you have referred to the advantages of multiple memberships versus sole membership. These two ideas are not compatible. May you clarify your position pls ? Moreover, the multiple membership requires that each SO and Ac forms an Unincorporated Association which was found very complex and unimplementable that is why such approach was stopped in favour of MSM. Do you suggest that CCWG review its position again? What we need to do is to fully understand how MEM functions and ensure that it has a legal validity 1. re is a need to fully 2 There is also a need to indicate in a flow chart7 diagram the stepwise course of action to be taken as proposed in MEM 2.1 For petition in each SO and AC 2.2 The way that A given petition is executed and decided upon (voting together with the associated threshold versus consensus, based on the procedure currently applicable in each SO and AC) 2.3 The follow up actions on petition in Forum, including the participation at the Forum 2.4 Formation of Issue Member Group 2.5 Composition of that Group 2.6 Decision making (voting together with the associated threshold versus consensus) 2.7 Whether the decision is taken would need to be discussed in the Standing Panel mentioned in the board proposal together with the size, composition and threshold of decision making. 2.8 Which SO and which Ac are decision making and which are advisory 3 Does the Board have a last word on the decision/ outcome of Issue Member Group? If yes why? 4 Does the Issue Member Group has any fiduciary responsibility 7 authority? 5. What is the real difference between MEM and MSM? If the difference relates to non-voting ability of ACs? .Is the difference is that in MEM approach the implementation 7 binding action of the decision is made is subject to the discretion of the Board?. If yes, does it means that the community does not have a real power to impose its decision to the Board?. 6 In the MEM, Board proposed that the outcome from petition and the outcome from Issue Member Group IS valid ,if no advice received against it from an AC . 7 What is the relation between Standing Panel and Independent Review Panel/ Process? 8 .Don’t you believe that the Issue Group Member is some type of the Sole Members 9 Having heard the views of CCWG in LA, does the Board have a way out to arrive at an acceptable consensus? i.e. something between the MEM and MSM? Regards Kavouss 2015-10-04 13:50 GMT+02:00 Tijani BEN JEMAA <tijani.benjemaa(a)planet.tn>: > Bruce, > > > > You say you prefer a full membership model where each SO and AC becomes a > member rather than a sole membership model because it concentrates all the > powers in the hands of a single entity. > > > > I don’t think it is the best way to avoid capture: In case we have each SO > and AC becoming a member, all those members will have the full statutory > rights and can at anytime exercise them including before the Californian > courts. The SOs or ACs that have a big interest (financial, political, > etc.) may use their member right to force the board to act for their own > narrow interest. > > > > In the sole membership model, no power is allowed to a single SO or AC; > they can’t act separately. Any power exercise would be the result of the > community consensus (any form of consensus including voting). So no capture > is possible. > > > > The only risk would be if all the community is not represented in the sole > member decision making, but this is the same risk for the full membership > model where you would have only some SO/AC becoming members of ICANN. > > > > I don’t say that the sole membership model is the best, but if I compare > it to the full membership model, I would prefer it. > > > > > -------------------------------------------------------------------------------- > > *Tijani BEN JEMAA* > > Executive Director > > Mediterranean Federation of Internet Associations (*FMAI*) > > Phone: + 216 41 649 605 > > Mobile: + 216 98 330 114 > > Fax: + 216 70 853 376 > > > -------------------------------------------------------------------------------- > > > > > > > > > > -----Message d'origine----- > De : accountability-cross-community-bounces(a)icann.org [mailto: > accountability-cross-community-bounces(a)icann.org] De la part de Bruce > Tonkin > Envoyé : samedi 3 octobre 2015 08:32 > À : accountability-cross-community(a)icann.org > Objet : [CCWG-ACCT] Personal thoughts on sole member > > > > Hello All, > > > > The following is NOT a Board view. > > > > My personal thoughts on sole member is that I prefer a broader membership > structure to a sole membership structure. > > > > For me - a sole member concentrates all the responsibilities of membership > into a single legal entity. I much prefer more distributed membership > structures that are more likely to represent the broader Internet > community. > > > > I am not aware of any similar Internet based body that operates under this > model. I have been on the Board of several non-profit organizations over > the past 20 years in a range of areas from sport to research to business, > and I have never personally had any experience in this model. I have > also done several company director courses and I have never had this model > come up in presentations or discussions. > > > > The sole member model also doesn't seem to particularly fit the current > SOs and ACs that often have different interests and areas of focus For > example SSAC and RRSAC have quite narrow mandates to look at particular > technical issues. They do not generally get involved in ICANN strategic > plans, operating plans, budgets, and naming policies. > > > > I think it is far better that SOs and ACs participate in the ICANN model > as themselves. I think we can empower each of these groups in our bylaws > in appropriate ways. > > > > If the CCWG really wants to go down the single member model, then I would > prefer a much more formal structure. > > > > - make the single member an incorporated entity > > > > - set the articles of incorporation up to ensure that the single member > has a fiduciary responsibility to the Internet community as a whole. I.e. > align its fiduciary responsibility to ICANN's fiduciary responsibility > > > > - have a board of the single member with the same structure as ICANN - > with SOs and ALAC appointing directors, set up a nominating committee (or > use the one we have) to select 8 directors, and have liaisons from GAC, > SSAC, RSSAC and IETF. > > > > - include in its bylaws its mission (to be a member of ICANN), and > processes it will use to reach decisions and consult with the community > > > > > > If this is sounding like what we already have - then that is not > surprising. > > > > I feel that it is certainly legally possible to create a sole member - but > it is practically highly unusual, and also seems completely unnecessary in > that we already have a Board that does much the same thing. The Board > listens to all parts of the community before making major decisions, and > acts for the benefit of the Internet community as a whole. > > > > > > So vmy preference order is: > > > > - leverage the governance model we have and refine to have additional > powers for the SOs and ACs in the bylaws, have a binding IRP mechanism if > any SO or AC feels that board is not following the bylaws, and set up a > mechanism to ensure that IRP decision is legally enforceable. This is > broadly the current Board proposal. > > > > - move to a full membership model with appropriate diversification and > participation of members that include infrastructure operators and users, > with appropriate culture and geographical diversity > > > > - use a sole member model - with a fully incorporated member and clear > fiduciary responsibilities. Set up the board of the sole member with an > equivalent level of governance as we have with the Board of ICANN. > > > > Regards, > > Bruce Tonkin > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community(a)icann.org > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > ------------------------------ > [image: Avast logo] <https://www.avast.com/antivirus> > > L'absence de virus dans ce courrier électronique a été vérifiée par le > logiciel antivirus Avast. > www.avast.com <https://www.avast.com/antivirus> > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >

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Personal thoughts on membership
by Bruce Tonkin Oct. 4, 2015

Oct. 4, 2015

Hello All, I have given the topic of membership some thought over the last 6 months. As has already been noted, the Articles of Incorporation does contemplate that one day ICANN may have members. Member organisations are quite common structures for ccTLD managers (e.g the manager of .au - auDA has about 150 members) , RIR structures (APNIC has 4,500 members) , and other I* bodies like the Internet Society (65,000 members) and World Wide Web Consortium (404 members). ICANN owes a fiduciary duty to the Internet community as a whole. For ICANN to move to a membership model I think it needs a membership structure that more broadly reflects the size and diversity of that "Internet community". The Structure of the SOs and ACs is an attempt to at least have a structure that "could" involve a large proportion of the Internet community. Using the GNSO as an example, it has as part of its structure: - gTLD registries, gTLD registrars, business users, intellectual property interests, internet service and connectivity providers, non-commercial users, and not-for-profit operational concerns interests. >From my perspective ICANN would be ready to move to a membership model when each of the parts of the Internet community has a statistically relevant participation in ICANN. The gTLD registrars stakeholder group for example have 89 members of about 1000 registrars, and those registrars represent a majority of the domain name registrations. I am less clear on whether the representation is appropriately in proportion across the 5 geographic regions. When I look at other areas though - I see limited participation from different parts of the world, and a limited proportion of the business, non-commercial entities and individuals involved in any way. The current ICANN model was established to reduce capture from any particular segment - e.g. just commercial gTLD registry or registrar interests, or predominately US based intellectual property interests etc. Each SO appoints two directors, ALAC appoints one director, the technical community has three liaisons (IETF, SSAC, RSSAC) and the public sector has one liaison (GAC). Other than that we formed a nominating committee comprising all of the above to find 8 directors that provide some cultural and geographic diversity to the Board. The nominating committee operates using consensus amongst all the representations from the SOs and ACs. This model attempts to balance people on the Board with specific technical names and numbers expertise, with people that bring a broad range of experience from different cultural and geographic backgrounds. This voting model was established over 16 years with a few changes along the way to substitute for the broader membership based body that many would like to see. I interpreted the NTIA announcement that it was ready to transition its stewardship as support for this governance model. So I don't think ICANN has sufficient participation to move to a full membership mode such that each of the parts of the Internet community has a statistically relevant participation in ICANN. Regards, Bruce Tonkin

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Re: [CCWG-ACCT] Board members joining the CCWG WP
by Steve DelBianco Oct. 4, 2015

Oct. 4, 2015

Thanks for the new volunteers, Bruce. Our immediate task is to analyze public comments and recommend amended proposals and/or choices for the CCWG to consider, by 12-Oct. Within WP1 we have 8 distinct groups working on this public comment analyses. Cherine joined some WP1 groups today’s call, and we look forward to having board members who are ready to help with the others: Budget, strat plan, op plan --> Jonathan Zuck, Cherine Chalaby, Carlos Raul Gutierrez, Mary Uduma Standard Bylaws --> Keith Drazek, James Gannon Fundamental Bylaws --> Keith Drazek, James Gannon Individual Director removal --> Mike Chartier, Robin Gross, Alan Greenberg Board removal --> Greg Shatan, Alan Greenberg AoC --> Steve DelBianco, Carlos Raul Gutierrez, Alan Greenberg Community forum --> Jordan Carter, Matthew Shears, Jorge Cancio CMSM --> Avri Doria, Robin Gross, Steve DelBianco, Jorge Cancio, Samantha Eisner, Alan Greenberg Tentative schedule to present PC analyses on upcoming WP1 conf calls: WP1 — Mon 5 October 10h-12h UTC AoC (Steve) Board Removal (Greg) WP1 — Tues 6 Oct - 19h-21h UTC Fundamental Bylaws and Regular Bylaws (Keith) Individual Director Removal (Mike and Robin) WP1 — Thur 8 Oct - 05h-07h UTC Community Forum (Matthew) CMSM (Avri and Robin) From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Bruce Tonkin Date: Thursday, October 1, 2015 at 9:22 PM To: "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] Board members joining the CCWG WP In addition Wolfgang Kleinwächter will join WP3 and WP4. Regards, Bruce Tonkin -----Original Message----- 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 Bruce Tonkin Sent: Friday, 2 October 2015 11:15 AM To: accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Board members joining the CCWG WP Hello All, Per the suggestion made in the Co-Chairs note to the Board, I would like to share with you the current list of Board members who will contribute to the WP efforts. We have asked staff to ensure that the Board volunteers be added to the WP mailing list(s). . For WP1: Chris Disspain, Cherine Chalaby, Rinalia Abdul Rahim, Erika Mann, George Sadowsky, Ram Mohan, Gonzalo Navarro . For WP2: Asha Hemrajani, Rinalia Abdul Rahim, Erika Mann, Gonzalo Navarro, Bruce Tonkin . For WP3: Rinalia Abdul Rahim, Markus Kummer . For WP4: Markus Kummer, Ram Mohan, Gonzalo Navarro . For ST-WP: we are not sure whether this group is active. If so, we will identify a participant. We look forward to working closely with the CCWG-Accountability through its WP processes to achieve positive results by Dublin. Regards, Bruce Tonkin _______________________________________________ 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 _______________________________________________ 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

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Lawyers' Meeting on Friday
by Dr Eberhard W Lisse Oct. 4, 2015

Oct. 4, 2015

Dear Co-Chairs, I understand that CCWG's Counsel met with ICANN's Counsel. I have not seen the report/minutes/notes from the meeting. Can you please ask staff to expedite transcription and posting to the list? greetings, el -- Sent from Dr Lisse's iPad mini

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An Indian perspective on ICANN accountability
by Arun Mohan Sukumar Oct. 4, 2015

Oct. 4, 2015

A colleague at the Observer Research Foundation offers his take on the state of play http://thewire.in/2015/10/04/icann-struggles-to-retain-its-power-as-the-int… Sent from my iPhone -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com Ph:+91-9871943272

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Re: [CCWG-ACCT] FW: Continued Counsel Dialogue
by James Gannon Oct. 3, 2015

Oct. 3, 2015

Hi Sam and Bruce, First of all I wish to express my disappointment at the tone on this memo, perhaps this is a cultural issues as I am more familiar with reading legal documents prepared by European counsel but I find the memo to be unnecessarily aggressive and accusatory in its tone. As the board and ICANN legal representation to the CCWG I would appreciate it if could be communicated to Jones Day a more collegial and collaborative tone would go a long way to ensuring that we all come to a mutually acceptable solution on these matters. I have noted some of my observations and notes on the content on the memo below for the CCWG to consider. Please note I am not a legal professional so these are my laypersons observations. DRAFT OF 1 OCTOBER 2015 High Level Response to CCWG Counsel’s 29 September 2015 Slides There appear to be several fundamental misconceptions concerning the CCWG’s Proposal and the Board’s Proposal, many of which can be said to derive from certain absolute statements by CCWG Counsel that at best are incomplete, and at worst are incorrect. The slides published by CCWG Counsel on 29 September 2015 highlight the root causes of this confusion. This memorandum is intended to clarify, at a high level, some of these misconceptions. * Untested Model: Contrary to CCWG Counsel’s assertion, the SMM does not have the “same basic structure as current governance.” The proposed SMM is untested within ICANN and is a significant and fundamental structural change from the multistakeholder governance mechanism that currently exists. Although membership may be a common practice for some non-profit organizations in certain contexts, CCWG Counsel has not identified exemplars where organizations comparable to ICANN (e.g., with many stakeholders) have instituted and successfully operated under the proposed SMM. In fact, a membership model was considered at ICANN’s inception and was rejected because it would not best serve the bottom-up, multistakeholder model. Care must be given before undertaking a widespread transformation of ICANN’s governance, particularly at a time – as now – when stability of the organization is of critical importance. In addition, CCWG Counsel has given little consideration to the need to test such a transformation of ICANN’s governance structure against the potential adverse effects it may have, including risks of capture, and whether this can be accomplished in the limited time available to meet a September 2016 transition. I don’t feel that the argument that membership was previously examined and rejected should hold much weight at this time, the form of membership and methods by which it will be exercised as proposed by the CCWG are extremely different to the previous membership explored within ICANN. We are planning for the future of ICANN and to continue to look backwards and push for a maintenance of the status quo is a futile exercise. The CCWG has considered through its extensive analysis, stress testing and other deliberations the issues raised with regards to assessing the various governance options available to us to fulfil our mandate of ‘enhancing ICANN’s accountability’, our counsel were not charged or instructed to develop such tests so it is correct that they have not made recommendations in this area to date, however I am confident that such matters have been considered during their own deliberations. Jones Day (JD) is correct in noting that membership is a common practise in non-profit corporate governance and I agree that ICANN is a diverse stakeholder group, however I cannot accept that this is a solid rationale for discounting the tribal knowledge in this area that we can assess during our deliberations. The CCWG has stated that further stress and risk management may be required going forward towards our final draft with regards to unintenden consequences and risks and has engaged with the board members and staff who have raised these critical issues. * The Sole Member and its Participants Owe No Fiduciary Duties to ICANN – One of the CCWG’s stated goals is to “propose reforms that would see ICANN attain a level of accountability to the global multistakeholder community that is satisfactory in the absence of its historical contractual relationship with the U.S. Government.” However, proponents of the CCWG’s Proposal minimize or ignore the fact that the shift to the SMM would place a significant amount of power in the hands of individuals and stakeholders that hold no fiduciary obligations to ICANN or the global stakeholder community. These individuals and stakeholders are free to act in their personal interest and are not required to make decisions based on what is best for ICANN, the ICANN community, and the global public interest. The result would be that a limited number of SOs and ACs (which could change over time) would have ultimate power over ICANN for significant matters with literally no accountability, producing exactly the opposite result that the community now seeks, i.e., “power without accountability.” Any shift of authority to the SOs and ACs should be accompanied by a commensurate level of accountability. To claim that the SMM would place a significant amount of power into the hands of individual stakeholders is in my assessment incorrect, we are placing power into the combined persona of the ICANN community, with representatives and stakeholders from every continent, with diverse backgrounds and interests and stakeholders who have proven over the past 17 years to be stakeholders worthy of accepting the responsibility of accepting the stewardship of the IANA functions as outlined in NTIA’s Memo of March 14th which stated its intent to transition stewardship to "the global multistakeholder community”, I believe that the NTIA chose its wording of the community and not specifying ICANN for a reason, and that is a reason that we cannot ignore. * Binding Arbitration is an Enforceable Mechanism to Ensure That ICANN Abides By The Fundamental Bylaws – CCWG Counsel asserts that there are “enforcement uncertainties” surrounding the Board’s proposed use of binding arbitration as an enforcement mechanism. This is not correct. Under a binding arbitration model, a panel would declare whether the challenged decision or action of the Board did or did not comply with ICANN’s Fundamental Bylaws. If the Board is found to have violated a Fundamental Bylaw, the Board is required to remedy that violation, within the Board’s discretion. If the Board fails to remedy a violation, the claimant may enforce the arbitration decision in the California courts. * CCWG Counsel agrees that a claimant “could be organized as a legal person,” although it states this is true “depending on implementation.” To be clear, under the Board’s Proposal, there are various options for “who” might enforce the final arbitration decision. The decision could be enforced by an unincorporated association comprised of: (i) an individual participating SO/AC or some grouping of participating SOs/ACs; (ii) the members of multiple participating SOs/ACs; or (iii) chairs of multiple participating SOs/ACs. Much like the SMM, discussed in ¶ 306 (p. 49) of the CCWG’s 2nd Draft Proposal, the SO/AC claimant/plaintiff “would be a legal person created through ICANN’s Bylaws as an unincorporated association.” In the alternative, the individual (natural) people serving as chairs of the participating SOs/ACs could enforce the award in an individual capacity (and could be indemnified by ICANN to assure that they would not have any personal risk). Both unincorporated associations and individual persons possess the requisite legal personhood to enforce an arbitration decision in court. * The binding arbitration decision is enforceable in California courts even if ICANN, for some reason, did not participate in the underlying arbitration. Specifically, if ICANN’s Bylaws allow ex parte arbitration proceedings, in the unlikely event that ICANN refuses to participate in the binding arbitration, the arbitration would still take place and, if the claimant is successful, ICANN would suffer the equivalent of a default judgment against it. A court could then enforce the arbitration award even if ICANN refused to participate in the arbitration proceedings (or the subsequent court proceedings). * The binding arbitration decision can be enforced by a California court even if the Board asserts that compliance with an arbitration decision would force the Board to violate its fiduciary duties. If the Board raised such a “defense,” the court would evaluate that claim and, within its discretion, would accept or reject it. If the “fiduciary duty defense” was rejected (which, practically speaking, is likely), a court order would issue compelling ICANN to comply with the arbitration decision I would appreciate JD providing examples of their basis for the above set of assertions, as there appears to be a direct contradiction with other known caselaw on the historical position of US courts when it comes to deferring to the decisions of the board of directors of a corporation when it comes to matters of fiduciary responsibility. * Board Removal is the Ultimate Enforceability Mechanism – Above all, under both the CCWG Proposal and the Board Proposal, the Community can remove individual directors or recall the entire Board if a director fails – in the Community’s view – to comply with the Fundamental Bylaws. The CCWG has long held that board removal is an accountability measure among a number and should not be the sole enforceability mechanism due to th risks involved in such actions, we need a toolkit not a sledgehammer to enforce the communnty powers. * Sole Member’s Statutory Rights – CCWG Counsel acknowledges that a Sole Member possesses broad statutory rights, but proposes that they be “limited by institution of high voting thresholds for their exercise.” However, the Sole Member’s statutory rights are enumerated by statute, and CCWG Counsel has acknowledged that many of these rights are mandatory and cannot be restricted. CCWG Counsel asserts that the CCWG’s proposal makes it difficult for the Sole Member to exercise its rights, but this does not mean that these statutory rights can be restricted or eliminated. * Regardless of the thresholds required for the Sole Member to exercise a statutory power, such thresholds only constrain the ability of the Sole Member to exercise the statutory power; the actual power cannot be restricted, so there remains a risk that the power will be exercised. Moreover, there is a possibility that only a limited number of SOs and ACs could participate in the SMM (and the number could decrease over time), which is made more problematic by the waiting periods on electing (or re-electing) to become a voting participant contained in the CCWG’s Proposal. Thus, statutory rights exist, no matter the voting threshold necessary to exercise those rights, and with no corresponding mechanism to ensure that the SOs and ACs that direct the Sole Member are accountable to ICANN or the global public interest, the existence of such rights constitutes a significant shift in ICANN’s governance. I don’t belive that the CCWG has received advise or has been under the impression at any time in our deliberations that statutory rights can be removed or eliminated, I believe that we have enough lawyers and laypersons familiar with legal terminology and constructs to guide us on basic matters of law such as this. The CCWG is currently assessing the issues of participation in the SMM and the various methods by which the community could express its positions through the sole member. We have at no point sought to exclude any part of the community from the deliberations or participation in the sole member. Some parts of the community have expressed a position that they will likely not participate on most matters brought before the sole member, however I feel that classifying voluentary withdrawl of one part of the community as capture by the remaining parts is at best incorrect and at worst inflammatory. We are all here to work together to a common goal, we as the CCWG have said that we have more work to do and are on conference calls and meetings and working day in and day out to try and come to the best ICANN we can envisage. Lets not denigrate that noble cause to accusations of capture and improper influence and see it for what it is, a complex and good faith effort to make this process work for all involved. -James From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Grace Abuhamad Date: Friday 2 October 2015 05:38 To: Accountability Cross Community Subject: [CCWG-ACCT] FW: Continued Counsel Dialogue Dear all, Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice. This memo is being forwarded to the CCWG-Accountability for transparency. This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel. —Grace Begin forwarded message: From: Kate Wallace <kwallace(a)jonesday.com<mailto:kwallace@jonesday.com>> Date: October 1, 2015 at 8:49:24 PM PDT To: "Gregory, Holly" <holly.gregory(a)sidley.com<mailto:holly.gregory@sidley.com>>, "Rosemary E. Fei" <rfei(a)adlercolvin.com<mailto:rfei@adlercolvin.com>> Cc: Lizanne Thomas <lthomas(a)jonesday.com<mailto:lthomas@jonesday.com>>, <jlevee(a)jonesday.com<mailto:jlevee@jonesday.com>>, "Kevin B Espinola" <kbespinola(a)jonesday.com<mailto:kbespinola@jonesday.com>>, John Jeffrey <john.jeffrey(a)icann.org<mailto:john.jeffrey@icann.org>>, <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℠<http://www.jonesday.com/> 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. ==========

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Board's view on the single member model
by Bruce Tonkin Oct. 3, 2015

Oct. 3, 2015

Hello All, I have been asked a few times for the Board's view on the single member model. The only written response on that topic that has been reviewed by the Board, is the statement we made in our public comments. See below. The Board has not discussed what changes to the sole member model would be required for it to be acceptable. The current position is the Board has put forward its suggestions for implementing the community powers for consideration and was waiting to see how the CCWG responded to those suggestions amongst other suggestions in the public comment process. If after reviewing all the public comments, and further discussions on the topic via the mailing list and WP calls, the CCWG still wants to proceed with a single member model, then the Board would then need to meet again to review its position. Regards, Bruce Tonkin >From section 35: Sole Member Model: The ICANN Board does not support this proposal. While the Board is supportive of a change in the balance of power among the community and the Board on operational matters, and agrees with the CCWG-Accountability Proposal elements that enhance those community powers, the Board believes that a Sole Member Model may introduce too much change and may lead to a delay in the IANA Stewardship Transition until that model has been working in practice. We refer to the other documents in our public comment for further detail. There is great value in, and the Board agrees in principle with, the process of petitioning, discussion and decision among the multistakeholder community to achieve the community powers. To support and enforce the new community powers that are proposed within the CCWG-Accountability Proposal, the ICANN Board proposes for consideration an alternative called the Multistakeholder Enforcement Mechanism (MEM) that leverages the ICANN's existing governance structure as well as the existing structure of SOs and ACs within ICANN. The MEM ensures that that the community has access to binding arbitration to enforce the new community powers, without requiring the formation of a member or a community voting mechanism. The binding arbitration will be enforceable under the laws of the State of California, and other courts as appropriate. Please see the MEM summary and FAQ for more details. The Board's approach relies on the broader SO and AC multistakeholder model to reach ultimate decisions to influence operational matters, as opposed to the collection of whatever grouping of SOs or ACs that happen to be part of (or are eligible to be part of) the Sole Member at a particular time. This provides simplicity as well as predictability on the scope of the community that is able to take these decisions at any time.

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Updated list of Board members in WPs
by Bruce Tonkin Oct. 3, 2015

Oct. 3, 2015

List of Board members who will contribute to the WP efforts: . For WP1: Chris Disspain, Cherine Chalaby, Rinalia Abdul Rahim, Erika Mann, George Sadowsky, Ram Mohan, Gonzalo Navarro, Asha Hemrajani, Markus Kummer . For WP2: Asha Hemrajani, Rinalia Abdul Rahim, Erika Mann, Gonzalo Navarro, Chris Disspain, Bruce Tonkin . For WP3: Rinalia Abdul Rahim, Markus Kummer, Wolfgang Kleinwächter . For WP4: Markus Kummer, Ram Mohan, Gonzalo Navarro, Wolfgang Kleinwächter, Ron Da Silva (joining the Board at the 2015 AGM) . For ST-WP: TBD Thanks, Grace

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Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT
by James Gannon Oct. 2, 2015

Oct. 2, 2015

Thanks for this Holly its very enlightening on a number of matters, certainly food for thought over the weekend. -James From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Gregory, Holly" Date: Friday 2 October 2015 20:38 To: "leonfelipe(a)sanchez.mx<mailto:leonfelipe@sanchez.mx>", "thomas(a)rickert.net<mailto:thomas@rickert.net>", "mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>", "accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>" Cc: Sidley ICANN CCWG, ACCT-Staff, "ICANN(a)adlercolvin.com<mailto:ICANN@adlercolvin.com>" Subject: [CCWG-ACCT] Documents for Posting for CCWG-ACCT Thomas, Mathieu and Leon and CCWG,, In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model. Kind regards, Holly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853 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. ****************************************************************************************************

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FW: [Acct-Staff] Webinar Q&A edits
by Grace Abuhamad Oct. 2, 2015

Oct. 2, 2015

Dear all, It has come to our attention that the work of Counsel to review the webinar Q&A was never received on the public mailing list. I¹m forwarding this for you now. These documents were used to produce the final Q&A from the webinars posted here: https://community.icann.org/x/SYtCAw. I will now proceed to post the Counsel documents on the Legal request tracking page. Thank you, Grace From: <acct-staff-bounces(a)icann.org> on behalf of Steven Chiodini <schiodini(a)adlercolvin.com> Date: Thursday, September 17, 2015 at 5:34 PM To: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> Cc: ICANN-Adler <ICANN(a)adlercolvin.com>, Thomas Rickert <thomas(a)rickert.net>, ACCT-Staff <acct-staff(a)icann.org>, Holly Gregory <holly.gregory(a)sidley.com>, Sidley ICANN CCWG <sidleyicannccwg(a)sidley.com>, "Rosemary E. Fei" <rfei(a)adlercolvin.com>, Mathieu Weill <mathieu.weill(a)afnic.fr> Subject: [Acct-Staff] Webinar Q&A edits Dear León, Please find attached a clean Word document containing our combined edits to the Webinar responses, along with a tracked-changes redline showing our edits over the version you sent on August 31. We have a few comments: - There was no response to Question #58 in the August 31 version, so we¹ve included a suggestion in bracketed highlighted text for a possible point to raise in a response here. - Please confirm the accuracy of the last sentence of the response to Question #33, which was in the August 31 versionwe had understood that part of the work of developing clear rules for IRP operating procedures and appeals may be done during the implementation phase. - The response to Question #55 might need to be updated in light of the developments over the past couple of weeks. - While our edits to the responses were extensive, we made only grammatical corrections to the questions themselves where absolutely necessary. Please let us know if you have any questions. Best regards, Steven Chiodini ===== 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 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, and delete all copies of this message and its attachments, if any. Thank you.

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