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