Paul, you miss my point. I was asking whether it was possible to waive the right to go to court, with the ultimate community recourse of ditching the Board (or part of it) - which COULD be enforced by the courts if needed.

Alan

At 25/05/2015 12:08 PM, Paul Rosenzweig wrote:

Alan

You are not wrong … but it is incomplete. Even if one agrees to use binding arbitration, there will always be a background right of access to the courts. For one thing, one party to the arbitration might defy the arbitrators award, requiring someone to go to court to enforce the judgment (since arbitrators do not come with police powers). For another, one party may dispute the terms of the contract and argue that the issue which the other party seeks to arbitrate is outside the bounds of the arbitration agreement in the first instance, and therefore the issue of the scope of the contract itself can become subject to litigation.

So long as there are parties, there will be disputes and there will be courts.

What you want, preferentially, is two things: 1) As clear a statement as possible regarding the scope and substance of binding arbitration; and 2) A judicial system where the courts systematically defer to arbitration and refrain from inserting themselves into the process to the maximum extent possible. So judicial systems may not be so withdrawn.

I can’t speak too much to the California system, though I do have a sense that they favor arbitration by statute. I can tell you that in the US Federal system, the preference for allowing arbitration to go forward is a matter of law. The Federal Arbitration Act ( http://en.wikipedia.org/wiki/Federal_Arbitration_Act) has been on the books since 1925. Supreme Court cases interpreting the statute have routinely given it broad effect and ordered lower courts to refrain from disturbing the contractual agreements between the parties as to arbitration. I have a sense, albeit limited, that in continental judicial systems, the courts are less deferential. But in truth it seems to me that it would be relatively hard to find a legal jurisdiction where substantially greater deference would be paid to the choice of arbitration than in the US.

[As an aside, of possible interest to some, this preference for arbitration is often seen by consumer advocates as a bad thing – many of the mandatory arbitration clauses that are the subject of litigation are ones that they think are unjustly “imposed” on consumers e.g. by big manufacturers. One of the underlying themes of this discussion is that private contractual arrangements are generally superior to judicial resolution. While I firmly agree with that, it is worth noting that it is not always the case …]

Cheers
Paul

Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
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Skype: paul.rosenzweig1066
Link to my PGP Key

From: Alan Greenberg [ mailto:alan.greenberg@mcgill.ca]
Sent: Monday, May 25, 2015 12:40 AM
To: Chris Disspain; Becky Burr
Cc: accountability-cross-community@icann.org
Subject: Re: [CCWG-ACCT] Question regarding UAs

I am entering a debate between two lawyers with some trepidation, but her goes.

I know that in contracts, one can agree to use binding arbitration instead of the courts. Can we do so here? With one exception. Members can go to court to enforce a recall/dismissal of Board members. It strikes me that if we can do that, we address all of the concerns.

Arbitration does not, I think, set a precedent that must be honored in the future, so Chris's worry about the courts defining the ICANN mission is no longer an issue.

The Board could still defy the community. But they could either discuss the situation, as Chris is convinced would happen, or ultimately if they refuse, or the outcome is not to the community's satisfaction, we have the right to remove those members of the Board who are standing in the way (or the entire Board). This could not be defied, because we COULD go to court over that.

Would this work?

Alan

At 24/05/2015 09:39 PM, Chris Disspain wrote:
Hi Becky,

So, that means that that in my scenario the community could go straight to court at any point that the Board ‘refuses’ to act. I’m not saying that is necessarily ‘bad’ but it’s important to understand. Not sure I understand this. If the community vetoed a proposed budget, but the Board refused to honor that veto, the community could seek to have its legal rights enforced – either in court or through arbitration. But under a member/designator model, the Board would be violating its legal obligation to honor the community veto. Why would it do that?

Surely irrespective of the obligation set out in the bylaw being legally enforceable, the Board would be obliged to refuse to honour the veto if it was advised that to do so would mean that ICANN was acting outside of its mission.

In the membership model the community could then go to court in California and ask the court to require the Board to honour the veto and the court would do so PROVIDED THAT it found that to do so was not outside the the mission. That would become a binding, precedent setting interpretation of ICANN’s mission by a US court.

In the non-membership model the community and the board would sit down together and work out a way through.

Not sure I understand this. I don’t think the courts in California currently have jurisdiction so I’m not sure that they can, today, involve themselves as you suggest. Confused here. If ICANN violated its fiduciary duties, breached a contractual obligation, or engaged in tortious conduct, a California court – along with lots of other courts – would have jurisdiction. With respect to fiduciary duties and contract breaches, California law would likely apply wherever the case was brought, though applicable law would vary in the case of tort claims. In the event the IRP became binding, a claimant could go to Court in California to force ICANN to honor the panel’s decision. Again, though, if the IRP decision was binding, ICANN would have a legal obligation to honor it, so why would it refuse to do so?

Yes, where there is a contract (registries, registrars) the California court has jurisdiction. But we are not discussing that. We are discussing changing the current structure so that the SOs and ACs have the right to make the Board do the stuff they would be obliged to do pursuant to the new set of bylaws.

You say, in the event that the IRP became binding, because the Board would have a legal obligation to honour the decision, why would they not? I say, if it is made binding under the fundamental bylaws, even if the Board could not be legally forced to honour the decision, why would they not? I accept they CAN refuse to honour it. Why WOULD they refuse to honour it?

I am confused.

Sorry for not being clear.

If ICANN refuses to honor a community veto of a budget or bylaw change, one or more of the UAs/members could use the IRP or go to court. Why is that a problem, if the budget has been vetoed with the support of the broader community as required to veto in the first place?

So you’re saying legal action CAN be launched at any stage by a single member irrespective of what the other members think?

More to the point, why would the Board refuse to honor a veto imposed consistent with the requirements?

As I’ve said above, if the board is advised that to honour the veto is a breach of their fiduciary duty then they would likely have to refuse.

We are making assumptions about lawlessness that seem odd to me. And if the Board is willing to ignore its legal obligation to accept a properly imposed community veto, why shouldn’t the members be able to enforce their legal authority? If you are worried that one UA would claim that the community had vetoed a budget when that wasn’t what happened, any lawsuit could be pretty readily disposed of by affidavits from other UAs.

Not what I meant.

As I understand it, the membership model would mean that any member could go to court in respect to the Board’s interpretation of any bylaw, not just the fundamental ones. So, if one SO or AC member (or their shadow entity) believed that a budget line item was outside of ICANN’s mission then as a member that SO or AC could launch court proceedings in California for a ruling as to whether that was or was not the case.

Am I correct in my understanding?

Cheers,
Chris
On 23 May 2015, at 03:05 , Burr, Becky <Becky.Burr@neustar.biz > wrote:

I have added some questions and comments in blue italics below

J. Beckwith Burr

Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington, DC 20006

Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz

From: Chris Disspain <ceo@auda.org.au>

Date: Friday, May 22, 2015 at 5:29 AM

To: "Mathieu.Weill@afnic.fr " <Mathieu.Weill@afnic.fr >

Cc: Accountability Community < accountability-cross-community@icann.org>

Subject: Re: [CCWG-ACCT] Question regarding UAs

Hi Mathieu,

See below. And thanks!

Cheers,

Chris

On 22 May 2015, at 20:16 , Mathieu Weill <mathieu.weill@afnic.fr > wrote:

Chris,

Thank you so much because I think this is a very useful discussion. I would try and reformulate to check if we are communicating before turning to lawyers or any further work :

1) The scenario to assess is the case where the community rejects a budget because the community would like Icann to expand its actions into something that the Community feels is within the Mission while the Board feels it is outside of Icann's Mission, as described in the Bylaws. The Board would then be "stuck" between the community and its perceived obligation to not mission creep.

Basically, our discussion is starting to look like a stress test of this particular scenario: what would the current accountability mechanism enable ? what enhancements or changes would be brought by the proposed accountability framework ?

Yes, I agree that this is, in effect a stress test. My view is that such a scenario under our current structures would be sorted out between us all.

2) It is clear to me that our initial report does NOT say that legal action could only be undertaken if all other remedies have been exhausted (I don't even think it would be legally feasible). Clearly this could not be mandatory in all circumstances, but I think you could take steps to encourage arbitration over resort to court if it really made sense to do that.

So, that means that that in my scenario the community could go straight to court at any point that the Board ‘refuses’ to act. I’m not saying that is necessarily ‘bad’ but it’s important to understand. Not sure I understand this. If the community vetoed a proposed budget, but the Board refused to honor that veto, the community could seek to have its legal rights enforced – either in court or through arbitration. But under a member/designator model, the Board would be violating its legal obligation to honor the community veto. Why would it do that?

3) You are asking clarification of several questions :

* what the limited grounds are for a California Court to overturn an arbitration (IRP) decision ? (my own recollection of the IRP memos we received from counsel was : arbitration scope or procedure)

Not sure I understand this. I don’t think the courts in California currently have jurisdiction so I’m not sure that they can, today, involve themselves as you suggest. Confused here. If ICANN violated its fiduciary duties, breached a contractual obligation, or engaged in tortious conduct, a California court – along with lots of other courts – would have jurisdiction. With respect to fiduciary duties and contract breaches, California law would likely apply wherever the case was brought, though applicable law would vary in the case of tort claims. In the event the IRP became binding, a claimant could go to Court in California to force ICANN to honor the panel’s decision. Again, though, if the IRP decision was binding, ICANN would have a legal obligation to honor it, so why would it refuse to do so?

* whether the proposed membership model would enable each UA to initiate legal action against Icann irrespective of what other parts of the community think ? (my understanding is : yes. But I guess that today if NARALO felt a decision was causing them prejudice they could sue Icann as well, so maybe we should reframe the question into : would there be a significant increase of the risk for Icann to be sued ?)

I don’t know what the status of NARALO is (are they a legal entity) and I don’t know if they could in fact bring proceedings against ICANN. And if they could the question would be ‘about what could they sue?’. Obviously, a gTLD registry has a contract with ICANN and could therefore sue ICANN (and vice versa) in respect to the contract. But I don’t think they could sue in respect to ICANN’s bylaws generally. And neither I suspect could NARALO.

So, yes, the question;

would there be a significant increase of the risk for Icann to be sued ?

is a relevant one provided you and I are right and any member will be able to sue ICANN about any interpretation ICANN makes about its bylaws. Thinking about it, we should probably get clarity on all the areas that a member could sue on.

I am confused. If ICANN refuses to honor a community veto of a budget or bylaw change, one or more of the UAs/members could use the IRP or go to court. Why is that a problem, if the budget has been vetoed with the support of the broader community as required to veto in the first place? More to the point, why would the Board refuse to honor a veto imposed consistent with the requirements? We are making assumptions about lawlessness that seem odd to me. And if the Board is willing to ignore its legal obligation to accept a properly imposed community veto, why shouldn’t the members be able to enforce their legal authority? If you are worried that one UA would claim that the community had vetoed a budget when that wasn’t what happened, any lawsuit could be pretty readily disposed of by affidavits from other UAs.

Can you please confirm that we are on the same page here ?
Assuming you’re fine with the above the, yes, we are on the same page.
best

Mathieu
Le 22/05/2015 08:47, Chris Disspain a écrit :
Mathieu,

You've asked a series of questions which I have thought about very carefully. I acknowledge that the scenario I suggest is unlikely but your questions have led me to a further question which I pose below my responses to yours.

- In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ?

I do believe that it is feasible that the Board could refuse the follow a community veto on a budget item because the board believes to do so would be a breach of the Board’s fiduciary duties to act in the interests of ICANN in accordance with ICANN’s mission.

- If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ?

They may well turn to the recall mechanism but would they HAVE TO. Is it anticipated that the resort to legal action would only be possible once ALL OTHER REMEDIES have been exhausted? In other words, in effect the only thing a court would ever be asked to do is to enforce the communities spill of the Board? Or is it perhaps anticipated that the community to resort to the court at any stage along the escalation process?

Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ?

The key point is that irrespective of whether there are “limited grounds” for the court to reverse a decision or take a decision contrary to the views of the community,it could happen. The ultimate authority becomes the Californian legal system.

And finally, is it not the case today that a Court of California could make such a binding decision ?

I don’t believe so but stand to be corrected.

My question is an extension of the point I’ve made above about when the community can go to court.

Am I correct in my understanding that once we become a member based organisation, it would be open to any of the member UAs to use the court system to bring an action against ICANN. In other words if the ALAC UA (and I’m just using ALAC as an example) was concerned about ICANN’s interpretation of one of its non-fundamental by-laws then ALAC UA would have legal standing to bring an action in California irrespective of what other members think?

May I ask that we get legal clarification on this point please?

Cheers,

Chris Disspain | Chief Executive Officer

.au Domain Administration Ltd

T: +61 3 8341 4111 | F: +61 3 8341 4112

E: ceo@auda.org.au | W: www.auda.org.au
auDA – Australia’s Domain Name Administrator
On 21 May 2015, at 17:14 , Mathieu Weill <mathieu.weill@afnic.fr > wrote:

Dear Chris, All,

Many thanks for explaining the concern through this step by step scenario. This is taking us closer to a stress test approach, which is not only valuable but also mandatory for our group, as per our Charter. I understand your concern is (quoting your email) "handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission."

There is however something I do not understand in your "steps":

Le 21/05/2015 03:45, Chris Disspain a écrit :

Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X

2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN

3. The community triggers escalation mechanisms

4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw)

5. The arbitrator finds in favour of the community and directs ICANN to do X

6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission

7. After the necessary community votes etc., the community now heads to court. In the State of California.

I have four questions :

- In your scenario the community would "mission creep". I am not clear how in our report the community would direct the Board to do X. Community powers as we have defined them are restricted to reject / review on budgets or bylaws. Could you clarify this part of the scenario ?

- If the Board refuses to act on the arbitrator findings, why would the community turn to California Court instead of recall the Board ?

- Given that there was a a binding arbitration decision directing Icann to do X, my understanding was that the court of California would have very limited grounds to turn the decision around. Is that not already addressing the concern of allowing a court of california to decide on what is or is not within Icann's mission ?

- And finally, is it not the case today that a Court of California could make such a binding decision ?

Best
Mathieu
As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.

Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.

If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.

Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.

Cheers,

Chris Disspain | Chief Executive Officer

.au Domain Administration Ltd

T: +61 3 8341 4111 | F: +61 3 8341 4112

E: ceo@auda.org.au | W: www.auda.org.au

auDA – Australia’s Domain Name Administrator

Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.

On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr@neustar.biz > wrote:

The “enforceability" issue is not about litigation at all, and it isn’t really about whether the Board or some newly invented group is more likely to get it right. Rather, it’s about checks and balances. Without the membership structure, the revised bylaws that empower the community to block certain actions, for example, are by definition advisory – they impose no legal obligation whatsoever on the Board and staff.   I don’t dispute that the Board would have a compelling interest in respecting community input, but as a legal matter without the membership structure, the Board would be required to treat any community vote to block, for example, as merely advisory and would have an affirmative obligation to do what it concludes is consistent with its fiduciary duty. The membership model affirmatively shifts some of that fiduciary responsibility to the community. It’s not a statement of who is right or wrong, but who has authority. Steve raises a reasonable question about how the members/unincorporated associations are accountable to their respective communities. But IMHO, the legitimate questions and concerns in this debate are getting obscured by polarizing language and assertions that it’s inappropriate to express a particular point of view.

The argument that there are no examples of situations that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board.” The community has never had any authority or tool to do so, so the fact that it never has is irrelevant and the assertion that it would not have is speculation. I certainly would have tried to get the community to overturn the Board’s decision to abandon the substantive standard for IRPs in favor of the “good faith” test. As it happens, none of the existing review and redress mechanisms would have worked in that case, and they probably wouldn’t work in the future either.

J. Beckwith Burr

Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington, DC 20006

Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz

From: Steve DelBianco <sdelbianco@netchoice.org >

Date: Wednesday, May 20, 2015 at 12:37 PM

To: "Chartier, Mike S" < mike.s.chartier@intel.com>, Steve Crocker <steve@shinkuro.com>, Keith Drazek <kdrazek@verisign.com>

Cc: Accountability Community < accountability-cross-community@icann.org>

Subject: Re: [CCWG-ACCT] Question regarding UAs

I don’t think there’s any question that the Board’s primary duty (not their only duty) is to ICANN the Corporation.   In addition to Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles (2008):

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations.”

Source: ICANN Accountability & Transparency Frameworks and Principles, Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf

From: "Chartier, Mike S"

Date: Wednesday, May 20, 2015 at 9:56 AM

To: Steve Crocker, Keith Drazek

Cc: Accountability Cross Community

Subject: Re: [CCWG-ACCT] Question regarding UAs

No comment on actual practice, but from a textual basis (which is what matters now since we are debating new text), I can’t see any inconsistency between the following statements:

“Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.”

“the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation,”

From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve Crocker

Sent: Wednesday, May 20, 2015 9:47 AM

To: Drazek, Keith

Cc: Accountability Cross Community

Subject: Re: [CCWG-ACCT] Question regarding UAs

I didn’t take it personally. I took it as a factually inaccurate statement that creates misunderstanding. Future boards are bound by the same rules as the past and current boards. The language you used is taken by many as a basis for believing there is a significant difference in alignment toward public responsibility between the ICANN Board and some newly invented                                        grouping of community members. It ain’t so and it’s inappropriate to suggest so.

Steve

On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Steve,

With all due respect, I think you’re taking this too personally and/or making it too personal. This is not about the current ICANN Board.

None of us know what future ICANN Boards will do, or what future ICANN Boards will permit ICANN’s management to do. Will future Boards always exercise appropriate oversight over management? Could there be instances where ICANN’s legal counsel advises a future Board to make a decision that is counter to the interests of the community to protect the financial interests of the corporation?

I see the proposed community membership structure simply as a check on the power of the Board, nothing more. It’s not about “controlling” or replacing the Board. The Board has its legitimate function, but its decisions cannot be unchallengeable. The community must have the ability to tell the Board it got a decision wrong and to enforce the will of the multi-stakeholder community in rare/limited instances and based on a very high threshold of community agreement/consensus.

I would certainly trust the proposed community members, representing their SOs and ACs, to be balanced, inclusive and trustworthy in protecting the interests of the overall community -- in their role as the aforementioned check on the powers of the Board. Not as a replacement.

Would you trust a future Board of sixteen unknown individuals more than you trust the multi-stakeholder, bottom-up, consensus-based community and process? It appears so.

I stand by and reaffirm my previous email. I hope my clarification helps.

Sincerely,

Keith

From: Steve Crocker [mailto:steve@shinkuro.com]

Sent: Wednesday, May 20, 2015 8:27 AM

To: Drazek, Keith

Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community; mshears@cdt.org; egmorris1@toast.net

Subject: Re: [CCWG-ACCT] Question regarding UAs

On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Hi Chris,

I think there's a fundamental flaw in your assessment. You appear to be looking at this question through the lens of the past and present, where NTIA holds the enforcement function ("enforceability") through its ability to rebid and transfer the IANA functions contract if the ICANN Board and management acts inappropriately. That is the existing and necessary check on the Board's decision-making power.

Without NTIA in its current role, the community MUST have the ability to check the Board's power, and the only way to secure that check is to create legal enforceability. Otherwise, the Board has ultimate authority, even if its decisions are inconsistent with the interests and desires of the community ICANN is supposed to serve.

You are proposing a transfer of power from NTIA to the ICANN Board, which has a fiduciary obligation to first serve the interests of the corporation. Alternatively, proponents of legal enforceability are in favor of transferring final authority to ICANN's multi-stakeholder community.

Keith, Edward and Edward,

We have covered the point above several times and it’s long past time to stop throwing this half-trust around. Yes, ICANN is legally a corporation, and, yes, directors of a corporation have a duty to protect the corporation. But that generality has a                                      far different meaning in a for profit corporation like Verisign than it does in a not-for-profit public benefit corporation like ICANN. The directors are obliged to pursue the purpose and mission stated in the incorporation papers and the bylaws. The directors serve the community, and we do so by exercising oversight over the corporation toward that end.

There will always be differences of opinion about the particular details, but those sorts of differences of opinion will arise in *any* governance model. The prevailing assumption in much of the correspondence on this list is that the proposed members will somehow be more balanced, more inclusive and more trustworthy in protecting the interests of the overall community than the ICANN Board is. That’s simply false. And I think you know that it is.

Please correct yourself and apologize.

Thanks,

Steve

We should all be looking at this through the lens of the future, when NTIA no longer holds the tether and is only participating through the GAC. How do we, the multi-stakeholder community, ensure that ICANN and its future Boards and management are truly accountable once the NTIA back-stop is gone?

The answer is to ensure the Board's decisions, in very limited areas, can be challenged and overturned by a significant majority                                               of the community. We need to protect against the "catastrophic" scenario you referenced. According to our independent legal advisors, the best (and perhaps only) way to guarantee this is through legal enforceability.

You asked, "Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?" I believe the answer is yes. Not only worth it, but necessary.

Regards,

Keith

On May 20, 2015, at 2:40 AM, Chris Disspain <ceo@auda.org.au> wrote:

For clarity, the last sentence of paragraph 8 below should read:

"However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community acting as one against an action or decision of the ICANN Board."

Cheers,

Chris

On 20 May 2015, at 16:13 , Chris Disspain <ceo@auda.org.au> wrote:

Jordan, All,

Thank you Jordan, for attempting to bring some focus to the current discussion about the UA model, membership structures and all of the related issues.

First of all, I want to acknowledge that I concur with you on a number points.

I agree that we need to develop a model that disrupts ICANN’s operation as little as possible. We can argue about how much disruption is either possible or preferable, but the principle is agreed.

I also agree that levels of accountability are not “up to scratch” and, irrespective of the model we arrive at post-transition, these need to be improved. Many of the improvements proposed by the CCWG: to the IRP, reconsideration mechanisms and the role of the ombudsman, the introduction of fundamental bylaws and binding arbitration, and the empowerment of the community to spill the ICANN Board, are also supported.

However, where I disagree with you is in respect to the absolute need for an additional mechanism, to supersede the current IANA functions contract, in order to ensure that the community can ‘control’ the Board because it has the right to bring a legal action in a US court.

I disagree with the characterisation that the purpose of the CCWG’s work is to wrest “control” from the ICANN Board and deliver it to the community. From your email, I gather that you are fundamentally tying the concept of control to “enforceability”, neither of which are goals for the current process. Rather, I believe we are aiming to deliver a structure where ICANN and its Board are held accountable to the community, via the number of improvements I mentioned above.

The need to assert absolute “control” or enforceability could only arise in the most catastrophic of circumstances. If we assume a situation where proposed mechanisms for escalation, independent review, binding arbitration and direct instruction by the SOs and ACs are not acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be irreparably broken? Is addressing this most unlikely scenario worth the significant structural changes a membership model would require?

Further, you refer to a “long list” of community concerns about ICANN’s current operations. I wonder whether these concerns are actually held by individuals (or individual constituencies) on particular issues and have been aggregated in to a larger picture of overall community dissatisfaction? Concerns by distinct groups on particular topics can certainly be dealt with by the increased robustness proposed to ICANN’s bylaws and operations. However, I cannot think of a single example of a failure throughout the history of ICANN that did result or would have resulted in the community as one against an action or decision of the ICANN Board.

To be clear – I am 100% supportive of improvements to accountability. I believe that the CCWG has initiated extremely useful work in identifying these mechanisms.

I remain unconvinced regarding the argument that accountability=control=enforceability, and the subsequent recommendations of the CCWG that arise from this assumption.

Cheers,

Chris

On 20 May 2015, at 15:33 , Jordan Carter <jordan@internetnz.net.nz > wrote:

We need legal persons to be members of ICANN.

They can be individual humans or they can be organisations.

UAs are the lightest touch, most easily controlled, non-human form of person that can fit this mould.

I do not understand the propensity of parts of our community to over-complicate things that look reasonably straight                                         forward from other points of view. Has ICANN always been like this? (Answers own question - it can't have been, otherwise it would never be organised the way it is today....)

cheers

Jordan

On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg@mcgill.ca > wrote:

Avri, I think that you are generally correct. We are putting this entire infrastructure in place because we want to be able to take ICANN or the Board to court if they do not follow the rules. I tend to agree with the auDA comment that if it ever gets to that stage, we are REALLY in trouble, and a simple court decision is not likelt to fix it.

But that nothwithstanding, we supposedly ned that UA because they can take legal action. But if the UA representatives                                                           do not listen to the SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no legal persona. So we are again left with a discontinuity where something is largely unenforceable and we have to take it on faith that they will do the right thing.

Of course, the UA reps and the Board members we select are basically drawn from the same pool, perhaps separated by a few years.

The difference between a Board member and a UA rep is the Board member has a duty to the corporation, and the UA rep can, in theory, be required to take instruction from the SO/AC. But enforcing that theory may be the rub.

Alan

At 20/05/2015 12:41 AM, Avri Doria wrote:

Hi,

I think I understand the argument about members becoming that to which

ICANN, and its Board, are responsible and accountable. From that

perspective it sounds really good.

What I have having trouble understanding is an accountability structure

were there is a discontinuity between the SOAC and the UA. If each of

the Board designating SOAC were the UA, it think I would understand.

But I just do not see how the UA are accountable to the people and

organizations that participate in each of the SOAC. Yes, the SOAC

designates it UA representative, but how is (s)electing one of these any

more accountable than (s)electing the Board as we do now. Don't we just

move the perceived/possible unaccountability down a layer in the hierarchy?

I think I am as comfortable with complexity as the next person. And I

understand how in computer science any problem can solved by adding

another layer of indirection, but in this case the extra layer we are

creating does not seem to really be accountable to anyone but itself,

except by (s)election procedures.

I am sure I am missing some critical bit of understanding and hope

someone can explain the chain of accountability in the membership

model. I feel that we are still hand-waving a bit in the explanations.

In a sense it seems as if we are creating a 'council' that is omnipotent

in the powers it is given, except that they can somehow be replaced.

Thanks and apologies for my persistent confusion.

avri

On 20-May-15 01:14, Jordan Carter wrote:

> Hi all

>

> This thread is useful to tease out some of the questions and concerns

> and confusions with the UA model, and as rapporteur for the WP

> responsible for refining this part of the proposal I am reading it avidly.

>

> I just want to take the opportunity to remind us all why membership

> (or something analogous) is an important aspect of the reforms we are

> proposing - no matter the precise details.

>

> At the moment without members, ICANN is fundamentally controlled by

> the Board. The only external constraint is the IANA functions contract

> with NTIA. The long list of community concerns and examples detailed

> by our earlier work in this CCWG shows that even with that constraint,

> accountability isn't up to scratch.

>

> We are working on a settlement without that NTIA contract.

> Accountability has to get better even *with* the contract.

> Fundamentally better, without it.

>

> Either we have a membership structure or some other durable approach

> that firmly embeds the stewardship of ICANN and the DNS in the ICANN

> community, or... we remain with Board control.

>

> Given ICANN's history, anyone who is advocating a continuation of

> Board control is arguing for a model that can't be suitably

> accountable, and that seems highly likely to fail over time, with real

> risks to the security and stability of the DNS.

>

> A real, fundamental source of power over the company absent the

> contract *has* to be established. The membership model is the most

> suitable one to achieve that that we have considered so far.

>

> So: we need to be creative and thoughtful in how we make that model

> work in a fashion that disrupts ICANN's general operation as little as

> possible. But the key there is "as possible." Real change is needed

> and much refinement and comment is needed.

>

> If there are proposals to achieve the same shift in control from ICANN

> the corporation to ICANN the community, I hope they come through in

> the comment period. So far, none have - but there are still two weeks

> of comments to go.

>

> cheers

> Jordan

>

>

> On 20 May 2015 at 10:45, Malcolm Hutty <malcolm@linx.net

> < mailto:malcolm@linx.net>> wrote:

>

> This whole thread seems to have massively overcomplicated the

> question.

>

>

> Unless I have missed something, the only reason we need "members"

> is to

> stand as plaintiff-of-record in a lawsuit against the ICANN Board

> complaining that the Board has failed to adhere to the corporations

> bylaws. Such a lawsuit would in reality be conducted by an SO or

> AC, but

> a person with legal personality needs to act as plaintiff-of-record.

>

> Why not simply proceed, as Samantha suggested, with the SOACs'

> Chairs as

> the members of the corporation? Could the Articles (or Bylaws, as

> appropriate) not simply identify the SOACs' Chairs as the members, ex

> officio and pro tempore?

>

> An SOAC Chair that refused to act as plaintiff-of-record when required

> to do so by his SOAC could simply be replaced. Likewise a Chair that

> went rogue and initiated a lawsuit without their consent.

>

> You can't make the SOAC a member without turning them into UAs,

> with all

> the attendent complexity. But I don't see that there should be any

> such

> problem with designating the chair of a SOAC, who will be a natural

> person, as a member of the corporation; the fact that the SOAC is

> not a

> UA is then irrelevant.

>

> In the event that there were any dispute as to whether a particular

> person is in truth an SOAC Chair, this would surely be a simple

> preliminary matter of fact for the court. It is surely beyond dispute

> that if the Articles designated "Alan Greenberg" as the member, it

> would

> be a matter of fact as to whether or not the person before the

> court was

> indeed Alan Greenberg; surely it is the same as to whether the person

> before the court is "the current Chair of ALAC", if that should be

> what

> is specified in the Articles?

>

> Malcolm.

>

> --

>           Malcolm Hutty | tel: +44 20 7645 3523

> < tel:%2B44%2020%207645%203523>

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