From: Aikman-Scalese, Anne <AAikman@lrrlaw.com>;
To: 'Ron Baione' <ron.baione@yahoo.com>; Nigel Roberts <nigel@channelisles.net>; paul.rosenzweig@redbranchconsulting.com <paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org <accountability-cross-community@icann.org>;
Subject: RE: [CCWG-ACCT] Need for clarity on enforcement mechanisms for Dublin
Sent: Tue, Oct 13, 2015 5:07:14 PM
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Ron, I personally think there is still a great deal of confusion about how some of the competing proposals for structure would operate in practice. I think that Steve’s idea about comparison of the enforceability aspect of the proposals for each model is a great idea whether or not we follow “Plan B”.
I also think we need a visual representation of the timelines associated with each of the three enforcement mechanisms, as stated on the call. For example, it is very unclear to me how the Community exercises budget authority as required by the CWG-Stewardship in the context of binding arbitration. Here is why:
1. Alan brought up the MEM does not specify a level of consensus. I read the proposal from the Board as requiring full consensus of all SOs and ACs. I brought this up as a question – that is, what is the Board’s definition of consensus in the MEM proposal from the very beginning. Of course as Alan points out, we have the same question as to defining consensus depending on how many SOs and ACs participate – in the CMSM proposal.
2. Assuming for the moment that consensus is reached on a budget rejection by the Community, it is not at all clear to me how that process evolves in the context of binding arbitration. Under the MEM, are we saying the Community sends the question of whether it is entitled to reject a budget to a panel of arbitrators to determine? Are we saying that under the CMSM, the budget is at that point rejected by the Community on notice to the Board and the Board has to go “back to the drawing Board” to submit another budget. What budget applies during the long process of binding arbitration?
This all points out that there are numerous questions raised by the Board’s proposal that we will have to take the time to carefully sort out – but it certainly would be appropriate to identify various timelines associated with the three models shown in Steve DelBianco’s chart and to create a visual representation of those timelines in relation to the questions Steve has asked for the six points. This is partly a legal question regarding how soon enforcement action takes effect. It is also a Community question regarding the commencement of deliberations on whether or not to take action, convening Community Forum, convening designators, etc.
Sidley memo says we already have a designator model, although not a sole designator model. WE DO NEED THEIR ANALYSIS, HOWEVER, OF THE TIMING TO IMPLEMENT AN ENFORCEMENT ACTION ONCE THE COMMUNITY HAS DETERMINED VIA CONSENSUS (HOWEVER THAT IS ULTIMATELY DEFINED) THAT IT WILL INDEED TAKE ACTION TO ENFORCE THE POWER.
It is tough to have new ideas when you are not even able to correctly evaluate those that have already been proposed. I volunteer to help work on timelines if others think this is appropriate. Anne
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org]
On Behalf Of Ron Baione
From:
Nigel Roberts <nigel@channelisles.net>;
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