- Accountability-Cross-Community

Fwd: [Acct-Legal] IRP question
by León Felipe Sánchez Ambía April 23, 2015

April 23, 2015

Dear all, I am forwarding counsel answer to the question: Can the IRP be binding either by statute, contract or otherwise? This will surely help us in our discussion on point 6.4 of the Draft report in the call that is ongoing. Best regards, León > Inicio del mensaje reenviado: > > Para: "'ccwg-accountability5(a)icann.org'" <ccwg-accountability5(a)icann.org> > Fecha: 23 de abril de 2015 14:12:21 GMT-5 > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: [Acct-Legal] IRP question > Responder a: ccwg-accountability5(a)icann.org > > Dear CCWG and Legal Subteam, > > Below please find the Sidley and Adler & Colvin response to the question assigned in the email that follows regarding the potential binding effect of the IRP: > > Yes, the outcome of the IRP process can generally be binding against all parties who have agreed to its terms, subject to two exceptions discussed below. > · The agreement to be bound by the IRP process would be expressed in the ICANN Bylaws, applicable to the Board, directors, officers, staff, and members or designators; it would also be part of any separate contract among the members or designators pertaining to ICANN governance. > · Any third party that agreed to be bound by the IRP process could also use the mechanism. > · Judgments of the IRP functioning in a manner constituent with the Federal Arbitration Act would be enforceable in the U.S. courts (and <> in the courts of other countries that accept international arbitration results). > · Two exceptions exist: > 1. Members. Those specific matters reserved to the members of the entity in the articles or bylaws. For example, if the budget is reserved to final approval of the members, and the members chose to overrule the Board on the budget, then the members would have the final word and IRP could not arbitrate the budget. If the members, and not the Board, are to decide an issue, then the IRP process would not apply because the power of the members is superior to the powers of both the Board and the IRP, based on the bylaws established by the members. > 2. Board Fiduciary. Those matters that are so material to the Board that it would undermine its statutory obligations and fiduciary roles to allow the IRP to bind the board. The Board cannot contract with another party to have its exercise of management responsibilities arbitrated. > These exceptions exist because some fundamental limits on the jurisdiction of the IRP are necessary to avoid having the IRP become unaccountable. If such a quasi-judicial function had unlimited jurisdiction, it could effectively become a super-board or a super-member (but without all the checks and balances that have been laboriously developed by the CCWG). Even in areas at the core of ICANN governance, however, the IRP could issue advisory rulings that would need to be reviewed and considered in good faith by the Board. > Holly J. Gregory > Sidley > > > ] -----Original Message----- > From: ccwg-accountability5-bounces(a)icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org>] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam > Sent: Thursday, April 16, 2015 9:11 AM > To: ccwg-accountability5(a)icann.org <mailto:ccwg-accountability5@icann.org> > Subject: [Acct-Legal] IRP question > > Counsel, > > As discussed in our call yesterday and with the prioritization set in mind, can I kindly ask you to provide us with a high level and very concrete answer on whether the IRP can be binding whether by statute, contract or otherwise? > > This will help us a lot on our discussion in our Tuesday call. > > As always, we appreciate your work under pressure. > > > Best regards, > > > León > > _______________________________________________ > 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> > > > **************************************************************************************************** > 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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Fwd: [Acct-Legal] As Requested Yesterday
by León Felipe Sánchez Ambía April 23, 2015

April 23, 2015

Dear all, I am forwarding this information from the lawyers which is an executive summary that aims to help everyone to better understand where we are at on the different questions that have been assigned to them so far. I kindly ask you to pay special attention to Anex A (page 5 of the document) which contains a summary chart comparing how different powers would play against the different corporate structures being discussed. I hope this information is useful to feed our discussions these days. Thanks to the lawyers for putting this document together in such a short notice. Best regards, León > Inicio del mensaje reenviado: > > Para: "'ccwg-accountability5(a)icann.org'" <ccwg-accountability5(a)icann.org> > Fecha: 23 de abril de 2015 12:25:53 GMT-5 > De: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5(a)icann.org> > Asunto: [Acct-Legal] As Requested Yesterday > Responder a: ccwg-accountability5(a)icann.org > > > Dear CCWG and Legal SubTeam, > > On behalf of Sidley and Adler & Colvin, attached please find the executive summary of the information provided in the Memorandum and Governance Chart that we provided to you on April 20, 2015, as requested yesterday. > > Also provided are the one-page chart you requested yesterday summarizing and comparing the six powers under the four models that have been discussed in our meetings (Annex A, the “Summary Chart”), and a revised Governance Chart, as requested, with conclusions added to the headline of each power (Annex B, the “Revised Governance Chart”). > > 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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Notes-Recordings-Transcript links for Intensive Meeting Day 1 - Session 2 - 23 April
by Brenda Brewer April 23, 2015

April 23, 2015

Dear all, The notes, recordings and transcripts for the CCWG ACCT Intensive Meeting Day 1 Session 2 - 23 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+1+-+Session+2 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Brenda CCWG Intensive Meeting - Day 1 - 23 April - Session 2 This session is being recorded. LINKS Intensive Meeting Program: https://community.icann.org/pages/viewpage.action?pageId=52897568 Draft Report Dedicated Webpage: https://community.icann.org/display/acctcrosscomm/Draft+Report Working Methods: https://community.icann.org/download/attachments/52897394/CCWG%20Intense%20… ods%20-.pdf?version=1 <https://community.icann.org/download/attachments/52897394/CCWG%20Intense%20… hods%20-.pdf?version=1&modificationDate=1429569720331&api=v2> &modificationDate=1429569720331&api=v2 AGENDA 1. Recap of session 1 (5') 2. Section 6.6.5 - Power: Recalling individual ICANN Directors (25') 3. Section 6.6.6 - Recall the entire Board (25') 4. Recap and next steps (5') 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. Recap: discussed the two options around the mechanisms, agreement the on the structure an composition of the mechanisms. Also discussed the reconsideration and rejection of the budget and strategic plan and reopen discussion this later today. An agreement on WP1 decision threshold. Agreement on rejection and changes of ICANN bylaws and after first reading agreed on the text as drafted. Section 6.6.5 - Power: Recalling individual ICANN Directors ** Recall of individual directors selected by SO/AC, Noncom appointment members, and thresholds to be considered. Based in WP1. Recall of individual directors relatively straight forward. More complex is recall of NomCom appointees. No agreement on the level of support needed to remove a director. [66%] [75%] Not to make it unattainable and also not too easy Also positioning thresholds to start the consideration of removing a director Begin with SO/AC directors. Is it WS1 issues? Should there be common requirements for removal of SO/AC removal, or should SO/AC set their own standards. Response: Consider it is a WS1 issue. Agree that recall should not be done by the sending constituency alone. Suggest it will be had to set common rules as the selection process are different. Legal counsel. under CA laws, generally the appointer has the power to remove a director. Approval at the very least. Under designator or member model. Given that there us a public interest element to directors service, it should not be the only the appointing organization that is involved in removal. But also recall that under CA law only the selector could remove. But if this not the case then only a constituency process. Comment: believes this was for a long time WS2. Note that the Board can already remove an Director, so how can the community move the Board to act and remove a director when necessary. Legal advice: under CA law, it will be the appointer, designator or member who removes the director they appointed. Their approval at the very least to do that. This would be the most straightforward way. If a director looses the confidence of the sending group then it is reasonable that the group should be able to remove that director At the very least the removal should be the sending organization. What is the situation under a single member model or a multi member model? Principle: the appointing entity should ultimately be the one to say remove that person. This is for removal without cause Currently appointed by SO/AC, but can be removed without cause by the Board. Need to consider this current reality. Summary: safe mode that the removal process should be decided by the specific SO/AC. Discussion if WS1 or WS2. With these tentative conclusions, in the pubic comment report , but we find more complicated than expected then can reconsider. If we decide WS1 then this is the way forward suggested. Objections? Provisional. electors make the removal. In favor of selector as doing the recall, but need a solution for NomCom appointees at the same time. ** Removal of NomCom appointees More complex from legal and political considerations. Could this be a WS2 item? Suggest not moving to WS2 unless the SO/AC also WS2. Suggest carrying the same approach, that a NomCom Selects, then a NomCom recalls. And that a NomCom recall procedure has been proposed. To ensure a comprehensive approach use the same approach, that a NomCom Selects, then a NomCom recalls. And a NomCom recall procedure proposed. Suggested that this approach might be considered in public comment. [audio lost, WS1 or WS2?] Hard for the current NomCom to also handle a removal process. These processes are essentially not compatible, and operationally difficult. But there could be community measure, preheat with a threshold similar to removal of the entire board or a little lower, to remove. Legal advice has suggested that a pre-service letter signed by directors on appointment saying they would resign under certain conditions: condition such as a super majority of the designator or members or a [community vote] calls for their resignation would be viable. A new removal NomCom would be hard to create, aware based on the IETF model, but IETF very different. Proposal to use the NomCom as is when the problem arises. Should be WS1. Stick to principle the appointee removes: the regular NomCom should be the body to remove. Assume the ICANN Board also have the right to remove a director. And will have new mechanisms to pressure the Board and NomCom to take actions, so may use that pressure to encourage them to remove a NomCom appointed director. NomCom suggestion is similar to IETF NomCom process, but adapted to fit the ICANN model. Suggested 2 different processes because of the two very different purposes of the processes. The removal of 1, when the other process is about finding and selecting a larger group. That the NomCom might feel they have people in their pool who would be better than the person being considered for removal, and that may influence their decision to remove. Sufficient support to include proposals on this issues in the PC report. Hear traction around the new "recall NewCom" proposal would be put forward in the report as a central option, as a proposal under consideration. And outline that other options are being considered and should be explained. And note the consideration of the consistency with the removal of individual directors. 6.6.6 Power: Recalling the entire ICANN Board Extensive discussion in Istanbul. We know the power to recall the entire board is feasible. Consideration of the voting thresholds and parameters for this community power. See the righthand column of community powers document. What's proposed is a legally viable approach. Consideration has been to make a high threshold. This should not be a trivial matter. A petition of 2/3 of the SO/AC (7 in total) and at least 1 SO and 1 AC supporting the petition. Suggesting that it should be a directed vote (para c). Threshold of the total possible total votes available, and not having abstentions reduce this, and not having a single SO/AC from blocking the process. Leading to threshold pointing to 75% rather than the 85% also suggested in the document. Could the SO/AC split their vote? This is a decision to be made once the mechanism is known, some would allow and some do not. Perhaps the same basis as other decisions, and the same should apply for all. An issue that requires clarification. After a board removal there is need to ensure continuity of operations of ICANN. This should be flagged in the report. A suggestion that 3/4 is too low. 4/5 (80%) recommended and ask that both thresholds are put for public comment as an option and seek community input. In favor of not allowing any any individual SO/AC blocking the process by itself, and 4/5 would be acceptable for this, but the voting powers ratio also needs to be considered. Recap: There will be clarification on the ability to split the directed vote, and the different threshold proposals will be in the report. review the board sections. * a set of proposal for WS1, based on each SO/AC being able to remove their own appointees. * proposal of a new NomCom process to remove NomCom appointees, noting in the report the other legally viable options and why they are less favored. * recall of entire board: further investigate the caretaker option as a replacement if a board is removed. Action: Legal group to ensure consistent. Petition levels no objections. And threshold coalescing around the 4/5 80% solution of the vote to remove. But be aware of not setting threshold so high that they make the mechanism unworkable. And noting the already high petition threshold. Suggest revisiting the vote threshold during the 2nd reading, will be easier when we know the voting powers. Reconvene at 19:00 UTC. To address WP2 items. end

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UPDATE - 6.6.1 Mechanism to Empower Community
by Alice Jansen April 23, 2015

April 23, 2015

Dear all, The 6.6.1 text - Mechanism to Empower the Community - has been updated to reflect the agreement reached during session 1 today (see attached: redline and clean versions (.DOC and .PDF)). These documents will be posted on the dedicated draft report wiki page shortly - https://community.icann.org/display/acctcrosscomm/Draft+Report Thanks Best regards Alice

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Notes-Recordings-Transcript links for Intensive Meeting Day 1 - Session 1 - 23 April
by Alice Jansen April 23, 2015

April 23, 2015

Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 1 Session 1 - 23 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+1+-+Session+1 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Alice ---- IN SUMMARY Section 6.6.1 - Mechanism to empower the community AGREEMENT: Two options : 1) ASO, ccNSO, GNSO 4 votes. ALAC, GAC, RSSAC, SSAC 2 votes.; 2) ccNSO, GNSO, ASO, At-Large, GAC: 5 votes. SSAC, RSSAC - 2 votes for public comment ACTION ITEM - Argue this proposal in document: notion of equal footing has to be set out. Elaborate on this section in document and capture value of discussion Section 6.6.2 - Power: reconsider/reject budget or strategy / operating plans AGREEMENT: WP1 decision threshold ACTION ITEM: Reopen this item on Friday, 24 April during open slot Section 6.6.3 - Reconsider/reject changes to ICANN bylaws AGREEMENT: First reading complete SESSION CONCLUSIONS We have discussed methods and approach. The group had substantive discussions on composition of community mechanism, budget/strategic plan approval and reconsider/reject changes to fundamental Bylaws. We have discussed pros and cons of giving weights to different groups and observed that Istanbul proposal has most of traction I.E. : 5 votes for ASO, GNSO, ccNSO, ALAC, GAC - 2 seats for SSAC, RSSAC. This is not the definitive discussion. The variation of that will be provided in the report along with background for community to determine whether agree or would suggest alternatives. With respect to community power to reject or veto budget/strategic plan, we need to make sure the community maintains control over both items. We need to be clear what terms we will use. We received confirmation from Council that we are those determining how to use terminology and that it is not necessarily prescribed by statutory law. This discussion will be revisited once we have more clarity on community mechanisms. The group – however – supports voting threshold. With respect to reconsider/reject changes to ICANN Bylaws, the group is in agreement with what is in the draft report. Next steps – we will be updating the report in light of session 1 discussion and will advise where the update can be found. We will recap when we reconvene in session 2. Tomorrow's agenda will be adjusted to capture budget/strategy discussion item. OTHER ACTION ITEMS: ACTION ITEM: Get back to CWG to determine whether comply with expectations ACTION ITEM: Adjust 24 April agenda to include budget/strategic operating plan agenda item ACTION ITEM: Indicate where session 1-related updates to draft report can be found ---- 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. Working Methods Reminder We will not be asking for consensus and chairing for final approval of proposals. We may describe options upon which community may provide input. We are focusing on requirements first and will discuss implementation as time permits. Our goals is to enhance ICANN accountability and to determine whether comply with CWG expectations. The CWG draft proposal is out for public comment - https://www.icann.org/public-comments/cwg-stewardship-draft-proposal-2015-0… ACTION ITEM: Get back to CWG to determine whether comply with expectations Rapporteurs will introduce sessions - staff is capturing edits - as needed. Fundamental Bylaws was missing from the frozen draft. Jordan and Becky have produced a short memo to be circulated shortly. We ask for susbtantive and constructive comments. Mechanism to empower the community Legal counsel was asked to provide a one-page overview of the four models: 1) membership; 2) variation using one single member; 3) designator; 4) as it is and achieve requirements within existing structure. Questions relate to voting powers, composition etc. Representation of voting: 1) equal representation between SOs and two main ACs and lesser power for RSSAC or SSAC; 2) distribution of powers and mechanisms should be same as in ICANN Board: 2 directors for ccNSO, 2 for GNSO, 2 ASO, 1 CEO, 1 ALAC. We should narrow down options to 1 - how do we distribute powers? Clarification in chart: suggested relative voting power, SO = 5, ALAC and GAC = 5, SSAC and RSSAC = 2 Feedback: - Work on equal footing - Important that each component of structure is equal - Second line is inaccurate - there is ALAC, not ACs. "S" on ACs is incorrect. Proposal: 5 SOs and 5 ACs is acceptable - Board voting is unacceptable. - This point should be open to public comment during discussion - Preference for advantage to SOs - they are core organizing groups - prefer 5 to 2 ratio rather than 5 to 1 - We should be asking community - Important that we are talking about voting power not about seats on Board - Not accurate to say we would be able to mirror Board composition (NomCom). Agree with 5 to 2 ratio - We need a model for future to come - agree SOs large ACs - equal footing and smaller 2 ACs having less. - 2:1 is a suitable ratio, no more than double - NomCom seats aren't really part of structure - counting everyone equally is not right move. Designators structure runs into trouble in trying to work to out in different way than Board decision - Support for 4 to 2 ratio proposal - Double voting to give voting to smaller ACs -- RECAP: traction for having different weight for different groups. Distinction between big and small groups. Traction for having 4 to 2 - If compare 4 vs. 5 - it might strengthen geographic diveristy especially for GAC and ALAC. Traction for 5 to 2 in chat. How do we allocate numbers? More support for big 5 (ASO, ccNSO, GNSO, GAC, ALAC) equally with lesser representation for SSAC - RSSAC --- - Suggestion to have 5 to 3 - let's note use big/small analogy - Who objects to equally treat: SOs + ALAC + GAC? - Suggestion to give RSSAC less weight and SSAC on equal footing - Two options : 1) ASO, ccNSO, GNSO 4 votes. ALAC, GAC, RSSAC, SSAC 2 votes.; 2) ccNSO, GNSO, ASO, At-Large, GAC: 5 votes. SSAC, RSSAC: 2 votes. - Propose that these two options be submitted to community for comment. - Ability of ICANN to make decisions in public interest. Contracted parties get precedence and advisors get pushed into second class position. We need to think hard about what we are saying. Support for WP1 proposal -> In option GAC has 5 votes - RSSAC is small - Need to ensure GAC will accept to have voting members in such a body. RECAP Substantial traction for proposal whereby the ccNSO, GNSO, ALAC, GAC, ASO would get a higher number of seats with lesser representation between SSAC and RSSAC without making a distinction between them. 5 - 2 more traction that 4 - 2 for geographic for diversity. Keep Istanbul proposal as most favored option. - Difficult to highlight pros/cons – concerns. AGREEMENT: Two options : 1) ASO, ccNSO, GNSO 4 votes. ALAC, GAC, RSSAC, SSAC 2 votes.; 2) ccNSO, GNSO, ASO, At-Large, GAC: 5 votes. SSAC, RSSAC - 2 votes for public comment. ACTION ITEM - Argue this proposal in document: notion of equal footing has to be set out. Elaborate on this section in document and capture value of discussion Power: reconsider/reject budget or strategy / operating plans Need to discuss whether open set of grounds and nuances that need to be in place to set up this power. Currently have process where Board has final approval - community does not have power to reject. We can provide community with power via designators or membership models. Each of these structures has pros and cons. Easier to implement at Bylaw level in membership model but does not mean it is easier in practice. It is important to consider legal advice as it will have an impact on design of mechanism. To discuss: 1) No objective list of criteria; 2) Plan or budget cannot be sent back again with new issues raised. - Suggestion to have community plugged into process as budget is developped - budget approved before it is sent to Board instead or reject - Process of approving could work in members model, but not in designators model. Community decision can only be binding if members. For designators, contracts. - CWG asks that we give power to veto budget and requests full transparency of IANA budget. Important that we make sure we stress whether this proposal fits CWG expectations. If it only a partial fit, provide a specific rationale. - Need to take into account that there might be changes to which there may be new objections - Who is going to judge whether request to reject is within grounds? - Community council will need more votes to reject budget again - setting higher threshold. - There have been improvements in recent years and need to look at these during WS2. If move to member model. Board is deciding power. - Reconsideration is first step of any course of action. Not logical that rejected or vetoed from beginning without giving right to ICANN to reconsider. Veto should be last recourse. 1) approval/disapproval ; 2) reconsideration ; 3) veto - Reconsideration may have timelines that are impracticable for Board. Give Board opportunity to review. Define transparency. - The Board is representing community. Take into account that process to build budget is complicated. Adding layer will mean we are outside timing. Open data can be collected/published. - Will need to discuss who has standing. - Legal counsel needs to describe what is reconsideration, what is approval/disapproval, what is reconsideration/veto. -> these are terms the CCWG defines - parties describe them in contracts/bylaws. - Are we willing to accept as a whole package (recalling Board members etc)? - Difficicult to make decision when unclear mechanism. Suggestion to rediscuss this during open slot on 24 April. There may be room for compromise: strong influence from community - 1) Force veto or require approval (membership) 2) reconsideration process. Suggestion to discuss tomorrow. Need real strong mechanisms that have teeth - not focus on recalling Board. - Support for WP1 threshold - agreement on these would be helpul for public comment. - Weight for membership model. Suggestion to have document identify membership model issues. -- RECAP: Item open for further discussion on 24 April. Call for any objections on WP1 thresholds. ACTION ITEM: Reopen this item on Friday, 24 April during open slot AGREEMENT: on WP1 decision threshold Reconsider/reject changes to ICANN bylaws This power can work in member and designator models. Higher threshold If sending back again. - Bylaw has fundamental provisions and general provisions. We should clarify that not two Bylaws but one Bylaw. AGREEMENT: First reading complete --- SESSION CONCLUSIONS We have discussed methods and approach. The group had substantive discussions on composition of community mechanism, budget/strategic plan approval and reconsider/reject changes to fundamental Bylaws. We have discussed pros and cons of giving weights to different groups and observed that Istanbul proposal has most of traction I.E. : 5 votes for ASO, GNSO, ccNSO, ALAC, GAC - 2 seats for SSAC, RSSAC. This is not the definitive discussion. The variation of that will be provided in the report along with background for community to determine whether agree or would suggest alternatives. With respect to community power to reject or veto budget/strategic plan, we need to make sure the community maintains control over both items. We need to be clear what terms we will use. We received confirmation from Council that we are those determining how to use terminology and that it is not necessarily prescribed by statutory law. This discussion will be revisited once we have more clarity on community mechanisms. The group – however – supports voting threshold. With respect to reconsider/reject changes to ICANN Bylaws, the group is in agreement with what is in the draft report. Next steps – we will be updating the report in light of session 1 discussion and will advise where the update can be found. We will recap when we reconvene in session 2. Tomorrow's agenda will be adjusted to capture budget/strategy discussion item.

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Community Empowerment proposals - A note
by Arun Sukumar April 23, 2015

April 23, 2015

Hello, The Centre for Communication Governance has prepared a brief legal note on some of the community empowerment proposals under consideration, based on our reading of the California statute. Please find it attached to this mail - we've prepared this keeping Indian stakeholders in mind. I'm conscious that the CCWG has moved some steps ahead but hope the memo is accessible for lay readers here! Happy to receive feedback from the working group before we circulate it here in New Delhi and elsewhere. Best, Arun -- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272

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The scope of "policy"
by Izumi Okutani April 23, 2015

April 23, 2015

Dear all, We had taken a look at the frozen document and it's great to see the points which needs community's attention are covered comprehensively including how we handle WS2 issues. We would like to express our appreciations for all the hard work and efforts of those who have been contributing in putting the document together. We noticed there is a part in Section 6.2 of the document which is left for [Insert] related to the number resources policy. While we weren't sure whether the intention is to leave it as it is for the public comment, below is a text suggestion if it helps to have something concrete for people to comment: Current: In this role, with respect to IP addresses and AS numbers, ICANN’s mission is to [INSERT] Suggested text: In this role, with respect to IP addresses and AS numbers policies, ICANN's role is as described in the ASO MoU between ICANN and RIRs. As a separate but related point to the number resources policies, there are several parts in the document applying "policies" and employing "policy development processes", including in the Core values, IRP and reconsideration - We would like to confirm the scope of "policies" used here, as some of its description may not be applicable to the number resource. This is because the bottom up policy development process and its forum for the number resources is outside the ICANN, even though the ICANN Board approves its global policies. We thought we'd share this so that description in the document for public comment would not be putting unintentional implications to policies developed outside ICANN. As a way of keeping the current description and addressing this point, may we suggest to add additional notes in the document for public comments such as "Policies and policy development described in this document is mainly intended for the names related policies developed within the ICANN forum. In case of including the global number resources policy in its scope for policies and its development process described in this document, further considerations should be made of its implications."? Thanks and talk to you all soon at the call. Best Regards, Athina and Izumi

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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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