April 2015 - Accountability-Cross-Community

Fwd: [Acct-Legal] CCWG -- Counsel response to Comments of Malcolm Hutty Re: IRP Memo and WP2 Template
by León Felipe Sánchez Ambía April 22, 2015

April 22, 2015

Dear Malcolm, Attached you will find brief answers from Counsel to the questions you raised earlier on the list with regards to the role and functions of the IRP. I hope you find this information useful. Best regards, León > Inicio del mensaje reenviado: > > Para: "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> > Fecha: 22 de abril de 2015 16:11:07 GMT-5 > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: [Acct-Legal] CCWG -- Counsel response to Comments of Malcolm Hutty Re: IRP Memo and WP2 Template > Responder a: ccwg-accountability5(a)icann.org > > > Dear CCWG Legal Sub-team, > > Please find attached a brief response to some questions/comments raised by Malcolm Hutty. > > Cheers, > Josh > > JOSHUA HOFHEIMER > Sidley Austin LLP > +1.213.896.6061 (LA direct) > +1.650.565.7561 (PA direct) > +1.323.708.2405 (cell) > jhofheimer(a)sidley.com <mailto:jhofheimer@sidley.com> > www.sidley.com <http://www.sidley.com/> > <http://www.sidley.com/> SIDLEY AUSTIN LLP > > > > > **************************************************************************************************** > 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://mm.icann.org/mailman/listinfo/ccwg-accountability5>

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Mailing List(s) Traffic
by Dr Eberhard Lisse April 22, 2015

April 22, 2015

Dear Co-Chairs, I have asked several times that the mailing list(s) be analyzed, for which there are tools out there. I can't find any response and am now wondering whether I am being ignored or whether the response is part of the deluge. Please advise. el -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

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Notes-Recordings-Transcript links for Legal Subteam Meeting #12 22 April
by Alice Jansen April 22, 2015

April 22, 2015

Dear All, The notes, recordings and transcripts for the Legal Subteam #12 - 22 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52897282 Notes Legal Subteam - Call # 12 - 22 April 2015 This call is being recorded. Chat sessions are being archived and follow the ICANN Expected Standards of Behavior:http://www.icann.org/en/news/in-focus/accountability/expected-stan… Legal Subteam Documents: https://community.icann.org/pages/viewpage.action?pageId=52890082 These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Action: Legal advisors to produce a simple summary chart [Thursday Apr 23, 15:00 UTC] Action: Leon, draft answers, consolidate discussion points submit to legal sub-group for proof reading and then circulate to CCWG Action: Legal advisors to review old documents and provide summaries only of information that is not clearly identified in the table. 1. Welcome & roll call Samantha Eisner and Alice Munyua are on the bridge. 2. Review of draft answers to lawyers questions Draft memo of April 17, with questions and answers from the legal team How imp is it for the mechanisms to be binding, rather than the current arrangement? When the lawyers see questions such as viability and assume legally enforceable, so clarification is valuable. Question/comment: could we at some point define our objectives: Removal of singe board member(s) Recall of whole board. Change of bylaw. Approval of or rejection of budget or strategy. Or any other of the core objectives of the mission. And present a table showing whether designator / member can execute these requirements. What might be added to, for example to designators, to make those powers apply. Lean summary chart, directed to non-lawyers, would be helpful. Action: lawyers to produce a simple summary chart [Thursday Apr 23, 15:00 UTC] What is meant by reconsideration under 2a? A process by which a decision of the board is turned back to them to re-think, without any requirement for them to take any specific action. Number of times something can be sent back, or only once, is another consideration. Concern with the potential of an endless loop of turning things back. Comment: Reconsideration is part of a natural process, veto from beginning would be unusual, step by step with reconsideration not an alternative to veto. Veto as the later action. Some may seem reconsideration or turn to an independent arbitrator may be enough rather than veto. Discussion of the style of legal advice: Can the lawyers produce summary advice first, and longer memo on record: from general to detail? wrt Q4. How will the membership model work for some communities --GAC and ccNSO have been mentioned. Not comfortable with saying member model is preferred at this time given the outstanding questions. Response: The member model seems to best fit our requirements Response: The member model doesn't seem to provide the flexibility needed, may need to look at the other model and consider making precedent as ICANN continues to make new ground in organizational governance. Response: question asked by counsel. Answer as is, and add an additional para asking if the designator model can be put in the bylaws and give greater flexibility. Some input in budget and strategy is sensible, but what is not satisfactory about what the community has now? And what might be possible to bind the board. Comment about how best to interact with the independent lawyers: The notion of preference of the group can only be handled at the CCWG level, not sub-group. But the sub-group can help guide the lawyers to clarity in their briefing documents. 4 models on the table: member, designator, all SO/AC as a single member, status quo. Receive information on the pros and cons on these options and hand this back to the CCWG for discussion. Lawyer and legal sub-group should be in a position to inform the CCWG of options and ti highlight the tradeoffs that have to be made. Single member model, SO and AC would join a single body of ICANN and act as member. Whether members are multiple or single, they should be able to do the same things. If more implementable from a community standpoint then can look at this. And believe a single members is possible. Will provide more precise analysis. If single member model, can single SO/AC still exercise statutory rights such as examining documents, recalling individual directors? Questions from the call can be provided. If a single member model, would the members of the single member structure have to be legal persons? Action Leon: Draft answers, consolidate discussion points submit to legal sub-group for proof reading and then circulate to CCWG 3. Discussion on Comparison Chart on Governance Models Including Chris Disspain's questions 1. Full Board Recall 2. Individual Director Recall 3. Approve Regular Amendments to the Articles or Bylaws 4. Approve Changes to "Golden" FUNDAMENTAL Bylaws or Articles Provisions These are achievable under both models, might be slightly easier under the member model. Both would need work done on the orgs that select directors, as they recommended to be a legal person, and under member must be a legal person. And Full Board Recall will require some combined mechanism to ensure the individual directors are recalled together by the sending orgs. 5. Approve Strategic Plan 6. Approve Budget Member and designator are different . Under corporate law, the members have powers to reserve powers to themselves in the bylaws, and these could be reserved. With designator there is less clarity, they cannot reserve certain powers to themselves, cannot reserve these powers in a truly binding manner. The designators do not have standing to bring a suit against the company for a violation of fiduciary duties, the members do have this. If member model not acceptable, the could look to create contracts between the designate and the company, where the company agreed to defer certain decisions to the designators for their approval. But, that contact cannot abdicate the board's fiduciary duties, can't go too far or the contract would not be enforceable. Reconsideration and independent review panels. Can look at mechanisms to strengthen this, but ultimately, decisions on budget and strategic plan will be reserved for the board, but the blocking powers are reserved for the members. If want these two powers, robust and simple. Must use member model. If want reconsideration rights that expire then can look at the designator model. But working against the legal norm when introducing contracts. A problem with contractual relationships: if under a contract it forced the organization to something beyond their fiduciary duty, then the director would be personally liable for breach of their fiduciary duties. Legal advisors note that they are pushing the designator model to the limits. If want truly enforceable model for the last two powers, then should go with membership. Comment: sufficient to have the first four in place. For the last two rely on the goodwill, of the board, or they get removed. The threat says listen to the community or we remove those not willing to listen to the community. Some contract for the designators as the SO/AC to remove their members, but what about the NomCom? Can the rest of the community remove the NomCom appointees? NomCom organized as representatives of the SO/AC and constituencies. Legal advisors need to look at how the NomCom is organized, but that more implementation issue that needs to be worked through (under both models). Contact to allow the collective of designators to remove their director together. Or some clause in the bylaws where on a vote of no confidence in the board, then they agree to act to remove their Directors. The bylaws also need to be valid. If the bylaws said the community must approve the budget, then that abdicates fiduciary responsibilities and so not valid. 5/6 powers would push contracts to the limit. What would full board recall contract look like, and would that push things to the limit. Contracts are valid. A contract among the members, or a contract for Directors as a condition on being a director to submit a commitment to resign in the event of a vote of no confidence. These contracts OK. Less certain when writing contracts which are is essentially at odds with the requirements of the law. If NomCom were as today, then would need a committee that was comprised of designators or and unincorporated association, and enter into the same arrangement with the SO/AC. Suggesting redoing much of the bylaws, then the structure of the NomCom be revisited as well. Easier to sort out issues of budget etc. on this side. IRP: having the IRP act as a reviewer of board decisions after the fact also has fiduciary issues, The NomCom is made of ICANN constituencies, and these constituencies would also be designators in their own right. How does that work? Legal advisors: Pre-service resignation commitment is likely the easiest way to implement full board recall. And in a community vote, the voters needn't be the designators or members, but could be separately defined. Action: Legal advisors will review old documents and provide summaries only of information that is not clearly identified in the table. Pre-service resignation letter, can it refer to some specific action of the community which might give the means to remove some individual NomCom members. A. can draft the letter in more detail and trigger a particular director's letter would be triggered. But picking off single NomCom directors might seem to be second guessing the NomCom and threaten the independence of the NomCom. 4. Review on WP2 document (not addressed) 5. Discussion with lawyers (not addressed) END Action Items Action: Legal advisors to produce a simple summary chart [Thursday Apr 23, 15:00 UTC] Action: Leon, draft answers, consolidate discussion points submit to legal sub-group for proof reading and then circulate to CCWG Action: Legal advisors to review old documents and provide summaries only of information that is not clearly identified in the table. Documents Presented * Draft Answers to questions on 17-Apr .pdf<https://community.icann.org/download/attachments/52897282/Draft%20Answers%2…> * Legal Assessment_ Governance Chart (1).pdf<https://community.icann.org/download/attachments/52897282/Legal%20Assessmen…> * Legal Assessment_ Governance Chart.pdf<https://community.icann.org/download/attachments/52897282/Legal%20Assessmen…>

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Fwd: [Acct-Legal] Proposed agenda for tomorrow's call
by León Felipe Sánchez Ambía April 22, 2015

April 22, 2015

Dear all, I am forwarding the answers provided by counsel to the questions raised by Chris Disspain. Interesting situations. Best regards León Enviado desde mi iPhone Inicio del mensaje reenviado: > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Fecha: 21 de abril de 2015, 10:59:52 PM CDT > Para: "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> > Cc: ACCT-Staff <acct-staff(a)icann.org> > Asunto: Re: [Acct-Legal] Proposed agenda for tomorrow's call > Responder a: ccwg-accountability5(a)icann.org > > Thank you Leon for sharing the agenda for the Legal Sub-Team call tomorrow. Below you will find responses to the four questions posed by Chris Disspain. For convenience, we have interlineated our responses following each question, and although the email comes from Sidley we have reviewed with Adler & Colvin as well. > > ===================================================================== > > Under the current structure of ICANN and its SOs and ACs > > 1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws? > > Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However: > > As to the budget, in a membership model, a bylaw could be drafted granting SOs and ACs the ability to veto the budget. In a designator model, this ability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). > As to a bylaw change, under both a membership model and a designator model, a bylaw could be drafted granting SOs and ACs the right to veto bylaw changes. This is addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). > 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto? > > First, for an SO or an AC to be able to enforce any right vis-a-vis ICANN, it would need to be organized as a legal person (such as an unincorporated association). Thus, under the current structure of ICANN and its SOs and ACs, the SOs or ACs could not enforce the veto right as they are not currently legal persons. However, in a membership model, a bylaw granting the SOs and ACs a right to veto the budget would generally be enforceable. In a designator model, this enforceability is unclear as there is not an established corporate law basis for it. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP1-C and WP-1F attached thereto, and (2) Sections 5 and 6 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). > A right provided by a bylaw to the SOs and ACs to veto a bylaw change would (subject to the legal personhood requirement stated above) generally be enforceable. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” sections of templates WP-1A and WP1-5B-2 attached thereto, and (2) Sections 3 and 4 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). > 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding? > > Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However: > > In a membership model, binding arbitration could be implemented in the bylaws or by agreements with the members, and the Board would generally be bound by the finding, provided the right to veto was reserved to the members in the articles or bylaws. > In a designator model, binding arbitration could be implemented for bylaw changes where approval was reserved to the designators, but the enforceability of a right to veto the budget would be questionable and the arbitration finding would generally be considered advisory rather than binding. These issues are addressed in Annex A to the Sidley Austin and Adler & Colvin April 20, 2015 memorandum (Link) and in the “Legal Analysis and Viability” section of the Independent Review Panel template included in Annex B thereto. > 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable? > > Under the current structure of ICANN and its SOs and ACs, no, not in a way that is enforceable. However, under either a member or a designator model, a procedure could be inserted into the bylaws to provide for a no-confidence vote. The members or designators would then enter into a contract whereby the members or designators agree to remove their respective directors upon the occurrence of the no-confidence vote. Another mechanism could be a “springing resignation” signed by each director on assuming office that automatically takes effect upon a no-confidence vote. These issues are addressed in (1) the Sidley Austin and Adler & Colvin April 10, 2015 memo (Link) and the “Legal Analysis and Viability” section of template WP1-7A attached thereto, and (2) Section 1 of the Sidley Austin and Adler & Colvin April 17, 2015 Revised Governance Chart (Link). > > Cheers, > Josh > JOSHUA HOFHEIMER > Partner > Sidley Austin LLP > +1.213.896.6061 (LA direct) > +1.650.565.7561 (PA direct) > +1.323.708.2405 (cell) > jhofheimer(a)sidley.com > www.sidley.com > SIDLEY AUSTIN LLP > > > From: ccwg-accountability5-bounces(a)icann.org [mailto:ccwg-accountability5-bounces@icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam > Sent: Tuesday, April 21, 2015 8:35 PM > To: ccwg-accountability5(a)icann.org > Cc: ACCT-Staff > Subject: [Acct-Legal] Proposed agenda for tomorrow's call > > Dear team, > > Attached you will find the proposed agenda for our tomorrow’s call. As usual, this is just a proposal that welcomes any addition or modification you consider pertinent. > > Attached also the documents for discussion. As for the questions raised by Chris Disspain, I paste them here: > > Under the current structure of ICANN and its SOs and ACs > > 1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws? > > 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto? > > 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding? > > 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable? > > Staff, I kindly ask you to please have the documents ready for display in the AC room. > > Looking forward to our call tomorrow. > > Best regards, > > > Best regards, > > > León > > > > **************************************************************************************************** > 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 > https://mm.icann.org/mailman/listinfo/ccwg-accountability5

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Fwd: [CCWG-Advisors] jan comments on 17 april ccwg materials
by Mathieu Weill April 22, 2015

April 22, 2015

Dear Colleagues, Please find below a contribution on our draft public comment report by Jan Aart Scholte, in his capacity as one of our Advisors. Best regards, Mathieu -------- Message transféré -------- Sujet : [CCWG-Advisors] jan comments on 17 april ccwg materials Date : Mon, 20 Apr 2015 07:19:58 +0000 De : Jan Aart Scholte <jan.scholte(a)globalstudies.gu.se> Pour : CCWG-Advisors <ccwg-advisors(a)icann.org>, jordan(a)internetnz.net.nz <jordan(a)internetnz.net.nz> Hello All Great to see that CCWG continues to make impressive headway after the productive Istanbul meeting. Many thanks, Adam, for your thorough briefing accompanying the documents circulated on Friday. My read of the materials prompts the following thoughts, mainly concerning the community empowerment mechanism: (1) The community empowerment mechanism increasingly looks to be based on SOs and ACs. A key question of course remains with what distribution of seats, and also whether any other body such as GAC or SSAC would have a voting representation. (2) Would any adjustments in the AC and SO constructions be advisable at this juncture, concurrent with the IANA transition, in order that 'the Community' as institutionalised in the empowerment mechanism aligns sufficiently closely with the present actual constellation of ICANN stakeholders in the world at large? (3) How (and how readily) could the the formula which constitutes 'the Community' in the empowerment mechanism be adjusted in future, as and when the prevailing arrangement is found inadequately to reflect the constellation of ICANN stakeholders at that future time? Consider how difficult it has been to adjust membership of the UN Security Council and the Boards of the Bretton Woods institutions, which remain largely frozen in the world of 1945. The world of 2045 is likely to be quite different from that of 2015 - will ICANN's constitution allow it readily to change with the times? (4) Related to (3), could overly high supermajorities have unwanted consequences of excessive constitutional conservatism? To be sure, too low a threshold could invite constitutional instability, but too high a threshold could invite institutional ossification. For example, constitutional reform of the International Monetary Fund has been so difficult in good part because an 85% vote is needed to alter the Articles of Agreement, which has effectively entrenched a US Government veto. (5) Then there is that ever-present thorn of the accountability of those who hold ICANN to account. How will participants in the empowerment mechanism be held accountable to wider stakeholder circles, both within ICANN (i.e. the ACs and SOs) /and beyond/? Legislators in democratic nation-states are subject to election by the general population, but delegates in the ICANN 'parliament' would only be elected by ACs and SOs, whose connections to wider constituencies - and that so-called 'global public interest' - can be quite thin? How does one ensure that the community empowerment mechanism does not become a vehicle for capture of ICANN by insider activists? Happy for this note to be made available to all CCWG if thought suitable. Not sure about the protocols of advisors' communications. Greetings Jan

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Re: [CCWG-ACCT] [Acct-Legal] Fwd: Legal question
by Dr Eberhard W Lisse April 22, 2015

April 22, 2015

Dear Co-Chairs, I object against a sub team making any such decision (whether to refer). el -- Sent from Dr Lisse's iPad mini > On Apr 22, 2015, at 06:16, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> wrote: > > I'm forwarding this email into the Legal Sub Team for possible referral to counsel. I'll forward a couple of replies afterwards. > > Greg Shatan > ---------- Forwarded message ---------- > From: Chris Disspain <ceo(a)auda.org.au> > Date: Tue, Apr 21, 2015 at 7:07 PM > Subject: Re: [CCWG-ACCT] Legal question > To: "Drazek, Keith" <kdrazek(a)verisign.com> > Cc: Accountability Cross Community <accountability-cross-community(a)icann.org> > > > Hi Keith, > > As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices. > > GAC > > The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway. > > However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree? > > ccTLDs > > When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs. > > Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter). > > At Large > > I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment. > > There’s more but I'm rushing for my flight now. Hope this gives you a flavour. > > > > > > Cheers, > > > > Chris > > >> On 21 Apr 2015, at 20:46 , Chris Disspain <ceo(a)auda.org.au> wrote: >> >> Hi Keith, >> >> Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so. >> >> Chris Disspain >> CEO - auDA >> >>> On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek(a)verisign.com> wrote: >>> >>> Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work. >>> >>> Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs? >>> >>> Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be. >>> >>> In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community. >>> >>> Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors. >>> >>> Thanks and regards, >>> Keith >>> >>> On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo(a)auda.org.au> wrote: >>> >>>> Thanks Keith. >>>> >>>> I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is. >>>> >>>> As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure. >>>> >>>> For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure. >>>> >>>> I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios. >>>> >>>> I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended. >>>> >>>> In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is? >>>> >>>> Chris Disspain >>>> CEO - auDA >>>> >>>> On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek(a)verisign.com> wrote: >>>> >>>>> >>>>> Chris, >>>>> >>>>> I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough." >>>>> >>>>> That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond. >>>>> >>>>> Regards, >>>>> Keith >>>>> >>>>> >>>>> >>>>> Sent from my iPhone >>>>> >>>>> On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo(a)auda.org.au> wrote: >>>>> >>>>>> Greg, >>>>>> >>>>>> Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet. >>>>>> >>>>>> Chris Disspain >>>>>> CEO - auDA >>>>>> >>>>>> On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc(a)gmail.com> wrote: >>>>>> >>>>>>> Chris, >>>>>>> >>>>>>> The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier. >>>>>>> >>>>>>> However, you assumed no change to the SOACs, which made the answers much harder. >>>>>>> >>>>>>> Greg >>>>>>> >>>>>>>> On Tuesday, April 21, 2015, Chris Disspain <ceo(a)auda.org.au> wrote: >>>>>>>> Greg, All, >>>>>>>> >>>>>>>> With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations. >>>>>>>> >>>>>>>> >>>>>>>> Cheers, >>>>>>>> >>>>>>>> >>>>>>>> Chris >>>>>>>> >>>>>>>> >>>>>>>>> On 21 Apr 2015, at 16:59 , Greg Shatan <gregshatanipc(a)gmail.com> wrote: >>>>>>>>> >>>>>>>>> Kavouss, >>>>>>>>> >>>>>>>>> That is not a correct summary of my views. Bylaws provisions are generally enforceable. (As an aside, "enforceable" can be use to mean two different things: (1) is the provision valid, so that an enforcement effort will not fail, and (2) can the other party or parties undertake an effort to enforce the provision by commencing litigation. I have tried to deal with both aspects of "enforceability," without veering too far into other ways of getting ones way (e.g., California AG, political pressure, Congressional investigation, pulling out and creating an alternate IANA, etc.) >>>>>>>>> >>>>>>>>> In spite of the general rule, there are two issues in this specific circumstance that undercut this general rule of enforceability. First, a couple of the specific powers that Chris mentions are ones where a third party is given a right superior the Board to make a decision regarding the management of the company (veto of budget and arbitration to enforce the veto of budget). In a member organization, the members can appropriately be in this superior position. In a non-member organization, that is inconsistent with the role of the Board, which brings the validity of these bylaw changes as hypothesized by Chris into question. Second, the SO/ACs, as entities currently without legal personhood, would likely not be able to participate in a litigation to enforce these bylaws; thus, the second type of enforceability is also an issue. >>>>>>>>> >>>>>>>>> It may be less troublesome for ICANN to enter into contracts and agree with third parties (i.e., the SO/ACs) that these third parties have the right to veto the budget. (Companies may be able to agree with third parties to do things that could not be part of their internal governance schema.) However, on further reflection, even this approach has its issues -- as the SO/ACs lack legal personhood currently, they cannot enter into contracts, either. (By contrast, the bylaws changes can at least be put into place without any action on the SO/AC's part.) >>>>>>>>> >>>>>>>>> I should note that granting third parties the right to approve a bylaw change (the third hypothetical action in Chris's email) is not as exceptional, so is less likely to raise validity concerns. This still leaves the issue that the SO/AC's lack the requisite legal existence to commence legal action to enforce a bylaws change in the event the Board fails to recognize such a bylaws change. >>>>>>>>> >>>>>>>>> In my opinion this kind of complexity and uncertainty is precisely why the member model should be adopted. >>>>>>>>> >>>>>>>>> Greg >>>>>>>>> >>>>>>>>>> On Tue, Apr 21, 2015 at 2:25 AM, Kavouss Arasteh <kavouss.arasteh(a)gmail.com> wrote: >>>>>>>>>> Dear All >>>>>>>>>> We complicating the case by envisaging the most extreme exceptional circumstances. >>>>>>>>>> In view of Greg, a Contract provisions are enforceable compared to Bylaws provisions which in his views are not enforceable! >>>>>>>>>> We may put the questions and answers to the lawyers and wait whether are consent? >>>>>>>>>> Could someone take necessary action ( e. g.) co chair in this regard? >>>>>>>>>> Tks >>>>>>>>>> Kavousd >>>>>>>>>> >>>>>>>>>> >>>>>>>>>> Sent from my iPhone >>>>>>>>>> >>>>>>>>>> On 21 Apr 2015, at 08:02, Greg Shatan <gregshatanipc(a)gmail.com> wrote: >>>>>>>>>> >>>>>>>>>>> The questions are simple. The answers may not be.... >>>>>>>>>>> >>>>>>>>>>> Also, it depends on what the lawyers are currently working on. Further, the meeting is in about 13 hours, and I expect (given the time) at least 6-8 of those hours will be used for sleep and commuting. So, it's not a lot of time. >>>>>>>>>>> >>>>>>>>>>> My views are as follows: >>>>>>>>>>> >>>>>>>>>>> On question 1, I think there may be issues in granting this right via bylaw, except to statutory members (and possibly to designators, at least where formally denoted as such), but these many not sufficient issues to cause the bylaw to be invalid. If it's found to be invalid in court, then it would be unenforceable. However, I believe that something similar could be achieved by contract, which should then be enforceable. >>>>>>>>>>> >>>>>>>>>>> On question 2, I would say that the Board cannot ignore an action mandated by the bylaws without some consequences. The SOs and ACs as currently constituted may not have the necessary legal personhood to pursue litigation. However, this could be reported to the California Attorney General, who has broad oversight powers relating to non-profits, and would probably be quite interested to hear about a relatively high-profile non-profit where the Board was ignoring actions mandated by duly approved bylaws. This could certainly be considered "enforcement," broadly speaking. There may also be other parties with legal personhood that could pursue litigation, and other governmental entities (Congress?) that could make this an exceedingly difficult choice to sustain. >>>>>>>>>>> >>>>>>>>>>> On 3, if the bylaw says the Board is bound, they're bound, unless the Board were to successfully challenge the validity of the bylaw. Again, it may be possible to achieve this by contract, with fewer questions raised. And again, there may be issues in granting this right to parties other than members (or possibly formally recognized designators), but those issues may not invalidate the bylaw. >>>>>>>>>>> >>>>>>>>>>> On 4, I think the answers to question 2 apply here as well. >>>>>>>>>>> >>>>>>>>>>> We can see if counsel agrees with this.... >>>>>>>>>>> >>>>>>>>>>> Greg >>>>>>>>>>> Caveat: not legal advice, not admitted in California >>>>>>>>>>> >>>>>>>>>>>> On Tue, Apr 21, 2015 at 12:55 AM, Chris Disspain <ceo(a)auda.org.au> wrote: >>>>>>>>>>>> Hi León, >>>>>>>>>>>> >>>>>>>>>>>> Really? They are fairly simple questions. As I said, I can ask them on the call. >>>>>>>>>>>> >>>>>>>>>>>> >>>>>>>>>>>> >>>>>>>>>>>> >>>>>>>>>>>> Cheers, >>>>>>>>>>>> >>>>>>>>>>>> >>>>>>>>>>>> Chris >>>>>>>>>>>> >>>>>>>>>>>> >>>>>>>>>>>>> On 21 Apr 2015, at 14:32 , León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> wrote: >>>>>>>>>>>>> >>>>>>>>>>>>> Thanks Greg, >>>>>>>>>>>>> >>>>>>>>>>>>> I just want to note that for the short notice it is unlikely we will be able to have answers to feed the discussion in our call tomorrow. >>>>>>>>>>>>> >>>>>>>>>>>>> >>>>>>>>>>>>> Best regards, >>>>>>>>>>>>> >>>>>>>>>>>>> >>>>>>>>>>>>> León >>>>>>>>>>>>> >>>>>>>>>>>>>> El 20/04/2015, a las 23:22, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> escribió: >>>>>>>>>>>>>> >>>>>>>>>>>>>> I am forwarding Chris Disspain's email into the Legal Sub Team for further consideration. I will let our counsels respond, should the Legal Sub Team's discussion result in a referral of the questions to counsel. >>>>>>>>>>>>>> >>>>>>>>>>>>>> >>>>>>>>>>>>>> Greg Shatan >>>>>>>>>>>>>> >>>>>>>>>>>>>> ---------- Forwarded message ---------- >>>>>>>>>>>>>> From: Chris Disspain <ceo(a)auda.org.au> >>>>>>>>>>>>>> Date: Tue, Apr 21, 2015 at 12:03 AM >>>>>>>>>>>>>> Subject: [CCWG-ACCT] Legal question >>>>>>>>>>>>>> To: Accountability Cross Community <accountability-cross-community(a)icann.org> >>>>>>>>>>>>>> >>>>>>>>>>>>>> >>>>>>>>>>>>>> Hello All, >>>>>>>>>>>>>> >>>>>>>>>>>>>> I’m not sure if this email should be addressed to the whole group, the legal sub-team or some other. Anyway, I have some questions that I would appreciate answers to from the CCWG’s lawyers. Happy to discuss on the upcoming CCWG call. >>>>>>>>>>>>>> >>>>>>>>>>>>>> Under the current structure of ICANN and its SOs and ACs >>>>>>>>>>>>>> >>>>>>>>>>>>>> 1. Is it correct that a bylaw saying that a combination of those SOs and ACs can veto the budget or veto a bylaw change can be drafted and put in to the bylaws? >>>>>>>>>>>>>> >>>>>>>>>>>>>> 2. Is it correct that were there to be such a bylaw and the SOs and ACs were to veto the budget or a bylaw change pursuant to that bylaw then the Board of ICANN could ignore that veto and that the SOs and ACs could not enforce the veto? >>>>>>>>>>>>>> >>>>>>>>>>>>>> 3. Is it correct that the veto bylaw could be drafted to require binding arbitration in the event that the Board refused to follow the SO/AC veto and if so would the Board be bound by the arbitration finding? >>>>>>>>>>>>>> >>>>>>>>>>>>>> 4. Is it correct that a Board spill bylaw could be inserted in to the bylaws and if triggered would be enforceable? >>>>>>>>>>>>>> >>>>>>>>>>>>>> >>>>>>>>>>>>>> Cheers, >>>>>>>>>>>>>> >>>>>>>>>>>>>> >>>>>>>>>>>>>> Chris >>>>>>>>>>>>>> >>>>>>>>>>>>>> >>>>>>>>>>>>>>> On 18 Apr 2015, at 14:50 , León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx> wrote: >>>>>>>>>>>>>>> >>>>>>>>>>>>>>> All, >>>>>>>>>>>>>>> >>>>>>>>>>>>>>> I am forwarding this document from Counsel for your records and for its relevance for our overall work. >>>>>>>>>>>>>>> >>>>>>>>>>>>>>> >>>>>>>>>>>>>>> Best regards, >>>>>>>>>>>>>>> >>>>>>>>>>>>>>> >>>>>>>>>>>>>>> León >>>>>>>>>>>>>>> >>>>>>>>>>>>>>>> Inicio del mensaje reenviado: >>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>> Para: "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> >>>>>>>>>>>>>>>> Fecha: 17 de abril de 2015 22:21:36 GMT-5 >>>>>>>>>>>>>>>> De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> >>>>>>>>>>>>>>>> Asunto: [Acct-Legal] (no subject) >>>>>>>>>>>>>>>> Responder a: ccwg-accountability5(a)icann.org >>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>> Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly >>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>> HOLLY J. GREGORY >>>>>>>>>>>>>>>> Partner >>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>> Sidley Austin LLP >>>>>>>>>>>>>>>> +1.212.839.5853 >>>>>>>>>>>>>>>> holly.gregory(a)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. >>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>> **************************************************************************************************** >>>>>>>>>>>>>>>> >>>>>>>>>>>>>>> <Legal Assessment_ Governance Chart.pdf> >>>>>>>>>>>>>>>> _______________________________________________ >>>>>>>>>>>>>>>> Ccwg-accountability5 mailing list >>>>>>>>>>>>>>>> Ccwg-accountability5(a)icann.org >>>>>>>>>>>>>>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 >>>>>>>>>>>>>>> >>>>>>>>>>>>>>> _______________________________________________ >>>>>>>>>>>>>>> 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 >>>>>>>>>>>>>> >>>>>>>>>>>>>> >>>>>>>>>>>>>> _______________________________________________ >>>>>>>>>>>>>> Ccwg-accountability5 mailing list >>>>>>>>>>>>>> Ccwg-accountability5(a)icann.org >>>>>>>>>>>>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 >>>>>>>>>>>> >>>>>>>>>>>> >>>>>>>>>>>> _______________________________________________ >>>>>>>>>>>> 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 >>>>>> _______________________________________________ >>>>>> 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 > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org > https://mm.icann.org/mailman/listinfo/ccwg-accountability5

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Fwd: [Acct-Legal] (no subject)
by León Felipe Sánchez Ambía April 22, 2015

April 22, 2015

All, I am forwarding this document from Counsel for your records and for its relevance for our overall work. Best regards, León > Inicio del mensaje reenviado: > > Para: "ccwg-accountability5(a)icann.org" <ccwg-accountability5(a)icann.org> > Fecha: 17 de abril de 2015 22:21:36 GMT-5 > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: [Acct-Legal] (no subject) > Responder a: ccwg-accountability5(a)icann.org > > > > Dear Legal Sub-Team, Attached please find revisions to the chart comparing the member and designator approaches from Sidley and Adler & Colvin as requested. Please note that in our cover memo we have posed several questions for your consideration. We have also provided a discussion of some considerations regarding implementation of both approaches. We are look forward to discussing with CCWG next week. Kind regards, Holly > > HOLLY J. 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. > > **************************************************************************************************** > > _______________________________________________ > Ccwg-accountability5 mailing list > Ccwg-accountability5(a)icann.org <mailto:Ccwg-accountability5@icann.org> > https://mm.icann.org/mailman/listinfo/ccwg-accountability5 <https://mm.icann.org/mailman/listinfo/ccwg-accountability5>

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Questions about Members
by Alan Greenberg April 22, 2015

April 22, 2015

I tend to relate to many of Chris' concerns about Members, but putting that aside, I am side a bit confused about the concept itself. I understand that to be Members, the ACs and SOs concerned would need to have legal status (unincorporated associations in this case). But this is where it becomes messy in my mind. The ACs and SOs are in fact creatures of (inventions of?) the ICANN Bylaws. Now we take those entities, give them status as associations, and make them Members of ICANN under its new Bylaws. In my previous involvement with Membership organizations, the Members were arms-length-removed from the organization of which they were members. This sounds sort of like a circular definition - entities created by the ICANN Bylaws become its controlling Members. In the past, ICANN could alter its Bylaws and create new ACs or SOs and make others go away (DNSO --> GNSO + ccNSO, for example). Could it still do that? If the GNSO was replaced by the XNSO, would the GNSO Unincorporated Association still be a Member? Could ICANN mandate changes in an AC or SO as it now can? The questions keep on coming... Alan

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Notes-Recordings-Transcript links for CCWG ACCT Session #23 21 April
by Brenda Brewer April 22, 2015

April 22, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Session #23 – 21 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52896616 Action Items Action item: Kavouss and Roelof requested to put comments in writing so the group has material input for the second reading during the intense work days. Action: to put CWG review language in the CCWG report. Action item: Kavouss and Roelof requested to put comments in writing so the group has material input for the second reading during the intense work days. Action: to put CWG review language in the CCWG report. 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 Roll-call Holly Gregory phone 3. Stress-Tests Stress tests relevant to the topics we may look at during the intense work day calls on Thurs/Friday 18, 13, 14 (17 if time allows) 26 tests in all - 3 tests require changes to the bylaws. Test 18, GAC advice. The GAC could change any time how it arrives at the advice it sends to ICANN, many methods, but on receipt of the advice ICANN must treat all the same, not recognizing the significance of GAC consensus advice, and the triggers caused by such advice The requirement is that the GAC use consensus if it wants to trigger the bylaws provisions, the newly worded test allows the GAC to define what it means by consensus (as ccNSO and GNSO do). Note: doesn't interfere with GAC methods of decision-making. ICANN always has to explain why it might not accept GAC advice, still the case. GAC delivers different kinds of advice, and all GAC advice should be considered. This is an issue that will be open for input until BA, in no way a closed issue. Historical note: prior to this bylaw being added to the bylaws, the GAC only delivered consensus advice. Noted that this has potential as an issue that slows the CCWG down in its work. And there are other tools being developed that might address any board decision that the community disagreed with. But not about how the GAC makes decisions, but how they give advice and have their advice is considered. The deference given to GAC advice is because it is consensus. Anything less should not merit the same level of deference. Action item: Kavouss and Roelof requested to put comments in writing so the group has material input for the second reading during the intense work days. We anticipate the GAC will continue to consider this issue and to give further feedback, and there is public comment to come where may be addressed. 2. CWG CoChairs update Documents: € Correspondence from CWG Chairs (15 April 2015) € DOC: Detail on CWG Requirements for the CCWG.docx PDF: Detail on CWG Requirements for the CCWG.pdf € DOC : Draft- Summary of Legal Structure for CWG Proposal.docx PDF: Draft- Summary of Legal Structure for CWG Proposal.pdf Update on the CWG work and where the CWG needs input from CCWG CWG meeting just ended to review the CWG draft report. The report is structured to be comparable with the other proposals for the ICG, to help the reconciliation process of the ICG Attempt to publish for public comment on 21 April and a 28 day public comment period. In its recommendations the CWG is relying on the CCWG, creating dependencies. Expectation that the CWG proposal may be conditional on the CCWG mechanisms being put in place. Lawyers to draft those contingencies. 3 issues from the CWG: ICANN budget. Working with ICANN and IANA staff, but more details and transparency. Specified response: need costs by item CWG asks the CCWG not to deal with ccTLD redelegation and delegation Community empowerment: a review of the IANA functions, and a possible special review. These need to be triggered by and accountable mechanisms. Review and redress, a fundamental bylaw to make sure that review teams' recommendations are addressed. Q. Can ICG consider the draft document before you receive public comment? A. The CWG draft won't be submitted to the ICG. CCWG response: the issues the CWG proposes are being addressed. The two groups have different timelines: can CWG share thoughts on the conditionality and how this effects the timelines. Need clarity on direct and indirect costs. The IANA function will be subject to periodic review, every 5 years after a first review, which will take place after 2 years. And also subject to special review, which can be called for as necessary. May say that a proposal will take place dependent on the mechanisms proposed by CCWG. The CWG must feel it can rely on theses mechanisms. Asking lawyers to frame the conditionality. CWG chose not to use the term revocation. CWG wants the IANA function review to be part of a regular calendar process. No reason why the IANA review could not be added to the CCWG AoC section and the review triggered out of calendar request also fits. Action: to put CWG review language in the CCWG report. CCWH noted the sense of urgency raised by the CWG 3. Stress-Tests (continued) Stress test 14 and 15. AoC into the bylaws. Pages 76/77 The commitments ICANN makes in the AoC should be taken into the bylaws, so those commitments continue, as WS1. Changes have been made to the old AoC text to reflect the move from a bilateral to global relationship. Global public interest. Enhance consumer trust and choice. The commitments to transparent budget processes, to participation, and advanced notice to facilitate stakeholder engagement in budget processes. AoC section 8b commits ICANN to keeping its headquartered in the USA. There is a need to reconcile the core values recommended by WP1 and WP2 Word "commit" does not appear in ICANN Bylaws --> "shall" 4. We are preparing for launch of public comment period - we are not presenting a consensus position. We will use philosophy that should be focusing on requirements first - and will tackle implementation as time permits. The simplicity test of our recommendations, particularly from the Singapore meeting. Please at least read section 6. The intense work period calls will be based on: * * CWG input * Legal input * Issues as discussed on the list in the last week * Aware people may not join all calls, and we do not take decisions on a single call/on the first reading. * The agenda will explain when an issue will be discussed, and we have given high priority to the availability of the rapporteurs to introduce their respective sections. * Between call try to circulate updated version. of the documents. 5. Legal advice Documents: To be circulated prior to meeting New documents: Comparative chart on the designator and member model, presenting rights of the models and how the rights can be exercised. Legal sub-team preparing a summary document of questions asked of the legal advisors and their answers to those questions. WP2 template received shortly before this call Legal sub-team will hold a session at the end of day 1 (Apr 23, 20:00 - 21:59 UTC) Note. Eberhard Lisse [.NA ccTLD Manager] Just for the record I renew my objections against the "intense work days" What the CCWG wants to do is largely possible, but the devil is in the details. A route for members, designators, or the looser arrangement of ICANN today The legal advisors have asked questions to try and understand what the CCWG really wants, priorities, and what tradeoffs are acceptable. Focuses on 6 core powers: recall of the board, recall of individual board members, ability to approve amendments to the articles or bylaws, ability to approve the fundaments bylaws, and ability to approve/reconsider the strategic plan and annual budget. Approving changes to the bylaws, fundamental bylaws, replace/remove their board members, can be exercised by designators and members. Needs to be articulated in the bylaws which are subject to amendment. The case of full board recall, some triggers will be required in the bylaws or contracts, but can be done. So there are differences in implementation, but the first 4 are achievable. Approve the strategic plan and approving the budget are more difficult. Both are the same conditions so the note only refers to strategic plan. Designators and members have very different powers on these two issues. Corporate law contemplates members being able to second guess the Board. Interfering with a board's fiduciary duty is usually hard, except for members who have this right. Designators do not have this right. To be given the authority to overturn a board decision would requires a contractual regime, cannot be done in the bylaws. Noting that the CCWG is asking for reconsideration of board decisions, members again would have that right. Concern that it may interfere with the fiduciary duties of the board so may be difficult for designators. Cannot interfere with the Boards statutory rights to direct the company, taking too many powers undermines the stability of the corporation. Under a members model there are viable legal mechanisms. Much more suspect under the designator model. CCWG member suggestion: The right for the community to send the document back, budget or strategic plan, and that it not to be implemented while sent back. A proposal that allows the board to still be the decisions maker. Lawyer response: If that is the consensus of the group, then that is helpful. Consider as reconsideration, it is better within a fiduciary system. Still more satisfied with a member structure, but an option to consider. If there is ever a dispute with the Board then having right to go to court is useful. Lawyers ask, what's needed from them this week and for the calls? A potentially endless reconsideration and a block process to prevent anything happening while an issue is being reconsidered will be problematic under a designator model, but doable under membership. Wrap-up. Stress tests are reasonable clear and will be addressed in the next intensive work sessions. The CWG inter relation is clear and know our way forward, Legal advice, made good progress in understanding the progress and different implementation models. Our requirements are ok, but different choices for us to make. Need all the facts on the pros and cons and then for us to make recommendations to the community on the tradeoffs we can make. Taking into account ease of implementation, the risks the costs, and all factors. Action item: Kavouss and Roelof requested to put comments in writing so the group has material input for the second reading during the intense work days. Action: to put CWG review language in the CCWG report. END

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Co-chair / rapporteur prep and debrief calls
by Mathieu Weill April 21, 2015

April 21, 2015

Dear Robin, Thank you for your email. We did not have time to address it during last week's call so, as discussed during the call. You raised the question of transparency of prep calls and debrief calls between co chairs and rapporteurs. We use these coordination calls to establish agendas, discuss outstanding items, define steps and issues (as needed), map out project planning and address any immediate questions or issues Rapporteurs and Cochairs wish to raise. Mindful of the time it might take for recordings and transcripts to be available and of the occasional need for redaction when sensitive matters are raised, e.g. complaints received from group members, we would like to suggest providing the group with a short bullet–point summary for future meetings, as an alternative. We feel a concise approach would enable the group to see what was discussed "at a glance". This alternative could also be expanded into summaries, as deemed needed by the group, with a note that content would be subject to redaction as indicated above. We would welcome the wider group's thoughts on the need to have calls recorded and transcribed. Are there requirements the group considers our calls should have in order to better serve the transparency process? We look forward to reading any additional feedback the group may have on this. Thanks Best regards Thomas, Leon and Mathieu Co-chairs > > From: Robin Gross <robin(a)ipjustice.org <mailto:robin@ipjustice.org>> > Date: Friday, April 10, 2015 9:27 PM > 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>> > Cc: "ccwg-accountability5(a)icann.org > <mailto:ccwg-accountability5@icann.org>" > <ccwg-accountability5(a)icann.org <mailto:ccwg-accountability5@icann.org>> > Subject: Re: [Acct-Legal] Fwd: teleconf: external legal advisors and > CCWG co-chairs > > This reminds me of a point I've been meaning to raise. I'd like to > request that the meetings of the co-chairs, rapportours, and staff be > recorded, transcribed, and posted to the web so we can more easily > follow along with the decision making process in the CCWG. Please > note that I do not make this request because I suspect any sort of > improper behavior at these meetings, but because it would help us to > better understand the big picture decisions and issues that we are > facing. And since we are an accountability group committed to > transparency in our own activities, I would expect there to be no > problem with such a request. > > Thank you, > Robin > > > > On Apr 10, 2015, at 12:15 PM, Greg Shatan wrote: > >> Counsel: >> >> CCWG co-chairs now request a pre-meeting with counsel (relating to >> the Tuesday presentation) from 18.30 to 19.00 UTC on Monday, April >> 13. (This was moved to avoid conflicts.) Please let us know if >> counsel will be available at that time. >> >> Thanks! >> >> Greg >> >> *Gregory S. Shatan **ï****Abelman Frayne & Schwab* >> *Partner****| IP | Technology | Media | Internet* >> *666 Third Avenue | New York, NY 10017-5621* >> *Direct*212-885-9253*|**Main*212-949-9022 >> *Fax*212-949-9190*|**Cell*917-816-6428 >> */gsshatan(a)lawabel.com <mailto:gsshatan@lawabel.com>/* >> *ICANN-related:/gregshatanipc@gmail.com >> <mailto:gregshatanipc@gmail.com>/* >> */www.lawabel.com <http://www.lawabel.com/>/* >> >> ---------- Forwarded message ---------- >> From: *Adam Peake* <adam.peake(a)icann.org <mailto:adam.peake@icann.org>> >> Date: Fri, Apr 10, 2015 at 2:54 PM >> Subject: Re: teleconf: external legal advisors and CCWG co-chairs >> To: Greg Shatan <gregshatanipc(a)gmail.com >> <mailto:gregshatanipc@gmail.com>> >> Cc: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx >> <mailto:leonfelipe@sanchez.mx>>, Alice Jansen <alice.jansen(a)icann.org >> <mailto:alice.jansen@icann.org>> >> >> >> Thanks Greg. >> >> Co-chairs and their request for 30 mins with the lawyers >> on Monday: 18:30 - 19:00 UTC should also be possible for them, could >> you ask the lawyers about that time? >> >> Best, >> >> Adam >> >> >> >> From: Greg Shatan <gregshatanipc(a)gmail.com >> <mailto:gregshatanipc@gmail.com>> >> Date: Friday, April 10, 2015 at 1:03 PM >> >> To: Adam Peake <adam.peake(a)icann.org <mailto:adam.peake@icann.org>> >> Cc: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx >> <mailto:leonfelipe@sanchez.mx>>, Alice Jansen <alice.jansen(a)icann.org >> <mailto:alice.jansen@icann.org>> >> Subject: Re: teleconf: external legal advisors and CCWG co-chairs >> >> Request made. >> >> Greg >> >> *Gregory S. Shatan **ï****Abelman Frayne & Schwab* >> *Partner****| IP | Technology | Media | Internet* >> *666 Third Avenue | New York, NY 10017-5621* >> *Direct*212-885-9253 <tel:212-885-9253>*|**Main*212-949-9022 >> <tel:212-949-9022> >> *Fax*212-949-9190 <tel:212-949-9190>*|**Cell*917-816-6428 >> <tel:917-816-6428> >> */gsshatan(a)lawabel.com <mailto:gsshatan@lawabel.com>/* >> *ICANN-related:/gregshatanipc@gmail.com >> <mailto:gregshatanipc@gmail.com>/* >> */www.lawabel.com <http://www.lawabel.com/>/* >> >> On Fri, Apr 10, 2015 at 12:39 PM, Adam Peake <adam.peake(a)icann.org >> <mailto:adam.peake@icann.org>> wrote: >> >> Hi Greg, >> >> Jordan has confirmed he would like external legal advisors to >> join the WP1 call next Monday: CCWG-Accountability WP1 Meeting #9 >> – Monday 13 April 2015 from 20:00– 22:00 UTC. (expected for 90 >> minutes, 2 hours as a placeholder) >> >> Please accept this note as a request for lawyers to join the >> call. Jordan has distributed an updated document, but I will >> wait until after today's call before asking you to send to the >> lawyers. >> >> And could you check if they will be able to send representatives >> to join a call with the CCWG co-chairs on Monday at 20:00 UTC? >> >> Best, >> >> Adam >> >> >> >> From: Greg Shatan <gregshatanipc(a)gmail.com >> <mailto:gregshatanipc@gmail.com>> >> Date: Friday, April 10, 2015 at 11:56 AM >> To: Adam Peake <adam.peake(a)icann.org <mailto:adam.peake@icann.org>> >> Cc: León Felipe Sánchez Ambía <leonfelipe(a)sanchez.mx >> <mailto:leonfelipe@sanchez.mx>>, Alice Jansen >> <alice.jansen(a)icann.org <mailto:alice.jansen@icann.org>> >> Subject: Re: teleconf: external legal advisors and CCWG co-chairs >> >> Adam, >> >> I'm happy to pass this on. However I note that this overlaps with >> the CWG-IANA meeting of 19:00-21:00, which may be a problem for >> Sidley (if they are being called on to be at that meeting) and >> the 20:00-22:00 WP1 meeting, which may be a problem for both >> firms. That said, it may be possible for each firm to use their >> teams to be in both places at once. However, if there is a time >> that is not so burdened (on my calendar, 17.00-19.00 UTC on >> Monday is "free."), it might be better to suggest that. To that >> end, would it make sense to suggest 19:30 UTC instead of 20:00? >> >> Greg >> >> *Gregory S. Shatan **ï****Abelman Frayne & Schwab* >> *Partner****| IP | Technology | Media | Internet* >> *666 Third Avenue | New York, NY 10017-5621* >> *Direct*212-885-9253 <tel:212-885-9253>*|**Main*212-949-9022 >> <tel:212-949-9022> >> *Fax*212-949-9190 <tel:212-949-9190>*|**Cell*917-816-6428 >> <tel:917-816-6428> >> */gsshatan(a)lawabel.com <mailto:gsshatan@lawabel.com>/* >> *ICANN-related:/gregshatanipc@gmail.com >> <mailto:gregshatanipc@gmail.com>/* >> */www.lawabel.com <http://www.lawabel.com/>/* >> >> On Fri, Apr 10, 2015 at 11:25 AM, Adam Peake >> <adam.peake(a)icann.org <mailto:adam.peake@icann.org>> wrote: >> >> Dear Greg, Leon: >> >> As you know, the co-chairs are adjusting the agenda of >> Tuesday¹s CCWG call >> (Tuesday 14 April 2015 from 12:00 14:00 UTC) to allow >> external legal >> counsel to provide an overview to the group. Details promised >> soon. >> >> In preparation for this, the co-chairs would like to ask >> representatives >> of both firms to join a call with them at 20.00 UTC on Monday >> 13 April. >> Call duration 30 minutes. The co-chairs can also provide a >> summary of the >> CCWG report (we shared the table of contents) during this call. >> >> Could you pass this request to the lawyers and ask them if >> members of >> their teams will be able to join, and if OK, who we should >> send calendar >> invites to. >> >> Many thanks, >> >> Adam >> >> >> >> >> >> >> >> <smime.p7s>_______________________________________________ >> Ccwg-accountability5 mailing list >> Ccwg-accountability5(a)icann.org <mailto:Ccwg-accountability5@icann.org> >> https://mm.icann.org/mailman/listinfo/ccwg-accountability5 > -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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