Dear all, The notes, recordings and transcripts for the Accountability WP1 Meeting #10 on 15 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52895958 Action Items Action: Avri Doria to write a short explanation Notes Accountability WP1 Meeting #10 on 15 April. Links: WP1 Drafts - <http://tinyurl.com/puvneyq> http://tinyurl.com/puvneyq These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. About the agenda: legal document with WP2 template and legal advice on some. CCWG Tuesday a presentation by the lawyers on powers and mechanisms. Some questions not asked, and clear in the call that the CCWG is far from agreement as to the mechanisms to choose. So WP1 is not close to recommending a mechanisms by Friday. On the co-chair coordination, need the debate in the CCWG to have the discussion about mechanisms next week. WP1 discussed Q&A items, to ask q of the lawyers, and WP1 written questions will be forwarded. So when we have the meetings next week, we are all in a better position to refine down to critical points and the mechanisms. Not a decision making call. To talk about the issues with the lawyers. To debate with the fill CCWG next week. 40 minutes. Followed by review of the 3rd draft "CCWG-ACCT Working Party 1: Community Empowerment Input for First Public Comment Report" 2. Q&A with Counsel on the "Mechanism" debate Question: different advantages/disadvantages of the designator model and the membership model. Strongest reason to select and drawback to each model. Advantage of membership is also the weakness. Statutory framework of rights in the corporation code. Members are given rights under bylaws or statute that cannot be given to designators. Some rights are those the CCWG wants. They are provided in the statute. The downside is the extensive framework of statutory rights that should be built into the bylaws, protections and rights. There is a lot of procedure and detail in the bylaws Advantage of designator is ignoring all of that. And disadvantage is that corporate law does not give rights that re available in the statute. To make those rights available, have to look to contact. CA corporations code allows any provision in the bylaws that you want for internal governance, that is not prohibited by law. If there are procedures you want to follow (reconsideration etc) can be out in, so long as not illegal. And what happens with enforce-ability. What happens if someone (the board) decides not to follow within the system, may have a harder time to respond in the designator system than the member system. If the SO/AC become members, are the liable. If GNSO designed a gTLD designed a policy that everyone thought silly and cause companies to loose millions $$$ could the GSNO be sued for this? CA law requires legal persons. For the designator model. legal advice is the designators be legal persons, or there'd be no means to legally enforce bylaws etc. This has worked for ICANN, perhaps we don't care? But having legal persons does also bring complications. So unincorporated associations are recommended for designators and members. And in member model the law says members are persons. If not legal persons then they only exist inside ICANN. So there is no legal recourse. They have the right to contract and the right to sue, and the burden of being sued. But the unincorporated associations have no "blood" no value. The unincorporated associations only can be sued, the participants are not liable. (Agreement from legal advisor) Freedom from lawsuit. Believe forming as unincorporated associations should not cause liability, and can protect the participants. They don't have assets. Crazy people might file lawsuits but expect those to be thrown out pretty quickly. Legal advisors do not think this is a significant concern. Q. Members and designators. GNSO made up of 4 distinct and different parts, unlikely to come to agreement on any issue. GNSO needs 4 distinct votes, weighted. Is this legally doable? In a member structure, members of different classes could be given different votes, quarters, or 4 votes, etc. In the designator structure, each would appoint their own Directors. It's the internal structures that would elect the same number directors. Second pathway, the same mechanisms as used to select the GNSO director could be how you vote as a designator or a member. Q. Designing a mechanism to induce the Board to consider, and what such a mechanism might look like. Advice that is received but not acted on. How to cause board action. Mechanisms to force a consideration by the board. in the member or designator structure could design a structure to whenever the member or designator petition the board for a hearing they get a hearing. A convening power to the community. q. if we get that mechanism, can the board then be forced to respond in such a way that can then be subjected to review, for example a triggering of a review mechanism. The outcome of the convened meeting has 3 results: do the thing people want, not do the thing, not take a decision. And those could be triggers for an IRP. A little easier with membership, but probably work around with the designators, not aware of the problem. q. NomCom. Would need to be a legal entity. Question, how to remove a directors appointed by the NomCom, could this only be done by a NomCom. Under the designator system only be removed by that entity. So under the designator system would need to be created as a legal person, restructured in some way. Under the member system, can mix designators, and NomCom could be organized as a designator in a member organized system. q. Designator model, contractual arrangements can make the designator model respond to the major requirements of the CCWG? q. if no additional measures to the designator model, what can we do an not do? Under designator system they cannot be given powers around budget and strategy, and also certain decisions around a review process. What is the minimum: even if you decide to maintain a designator system lead advice if the designators are organized as legal persons, to provide protection against liability, a shield, and in the future if needed, they would have standing to enforce their rights. q. putting the membership into place would be more complicated and take longer? Not considerably more complex. The way currently organized into groups that are like members. The member structure relies on some more subtle areas of law. But not a radical change from the designator structure. Look at discrete member rights and say not so complex, but in CA there are elaborate members requirements, notice requirements, inspection rights, etc., that make it more complicated to implement. (fro chat) I would like to clarify. I think for member corporation, as Ingrid said, the complexity is in the rights and statutory framework. I Think with designators, the complexity is in designing the contractual arrangements. So I would say they are both complex, but perhaps in different ways. q. legal sub-team, ask for questions in writing, what happens to those questions: what steps? Questions are reviewed by the legal sub-team, not all are sent. Questions are sent through, or they are collated and sent to counsel. label any question for counsel, and break out questions from long threads. 4. Public Comment Document content Review the document part by part. Comment: 6.5.2 Power to reject budget/strategy. Suggest the title should include reconsideration, the board should be given that option. Rejection comes later. Correct the inconsistency. Response: In each situation described, there is a reconsider requirement while there is a block of execution going on. Global public interest. What re the criteria for that? What are the ICANN stakeholders. page 3, 2nd power. Change adopted to approved, and these are suggested global changes for the document. Ratios: 50%, 60% subsequent rejection: suggest higher for what an extreme measures, raise by 10% - 15%. Question, should these ratios should considered in comparison with the other powers and the importance of other powers? Think of the rights of members of an organization usually in terms of approval of the budget. issues of detail. Is it a positive right to approve or a negative right to object? But this will not be a process of the community coming in to approve, it will only occur when the community has an issue with the board's actions. 6.5.3 increased threshold for the right to object. Title should also match content (as with 6.5.2.) Fundamental and non-fundamental bylaws. Which are the fundamental bylaws. Timeline of 2 weeks to short, and threshold is too low. Timeline for bylaws change already require a public comment, the additional time is not so long as it will have been extensively publicly discussed. How to distinguish between fundamental bylaws? We propose what they are, and these come from WP2. Mink around core mission and values. And will be visible what they are. WP2 will identify them and describe why they merit protections. Fundamental bylaws tend to go to the core of corporation, and those being suggested seem to do that. And they would be clearly set out that they had different mechanisms for change etc. Who can change or propose changes to fundamental bylaws. ATRT and other review teams have suggested bylaws changes. Believe SO/AC can recommend to the Board to make bylaws changes, but it is a Board mechanism. And the Board on its own initiative can move to amend bylaws. Does this with the 2/3 majority. Anticipate changes to fundamental bylaws would be higher. 6.5.5. recalling individual directors Removal of the NomCom appointed directors. Is the IETF model one to consider? Threshold: 40%, concern too low. Recall methods within stakeholder groups. escalation mechanism: not suggesting the NomCom is the body to remove a director, but suggesting that there should be a way to remove them through a community mechanism. Consideration that it is not appropriate for the NomCom to be the remover. As yet we don't know the mechanism. Threshold: for now, that it should be the majority of the community, but to be discussed on the full CCWG IETF model: Petition to assemble a recall NomCom. Same rules of the regular NomCom, but is single issue. Decide on the 75% basis to remove or not. Offer to draft the analogous procedures. Action: Avri Doria to write a short explanation. 5. Agenda for Next Call Paper is the sole subject of the next call. Jordan will add comments to Ver 3 of the document. Next call will pick up at the end of 6.5.5. 19:00 UTC Thursday April 16.
