No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD. After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so. Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong? Cheers, Chris

On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org> wrote:

Hi,

That was one of my favorite lines as well.

And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."

avri

On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:

...

I really LOVE this one:

[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]

(last line on Page 1)

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I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing? Cheers, Chris

On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org> wrote:

Hi,

Within ICANN, it rests with the Board.

I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.

avri

On 02-Oct-15 06:57, Chris Disspain wrote:

...

No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.

After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.

Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?

Cheers,

Chris

...

On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:

Hi,

That was one of my favorite lines as well.

And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."

avri

On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:

...

I really LOVE this one:

[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]

(last line on Page 1)

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Hi Avri, I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement. That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org> wrote:

Hi,

Ultimately yes, they can all end up in court.

The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.

avri

On 02-Oct-15 18:21, Chris Disspain wrote:

...

I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?

Cheers,

Chris

...

On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:

Hi,

Within ICANN, it rests with the Board.

I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.

avri

On 02-Oct-15 06:57, Chris Disspain wrote:

...

No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.

After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.

Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?

Cheers,

Chris

...

On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org>> wrote:

Hi,

That was one of my favorite lines as well.

And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."

avri

On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:

...

I really LOVE this one:

[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]

(last line on Page 1)

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Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice". Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what? My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so. Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end. Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way. I rest my case! Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com> wrote:

Seun,

You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.

If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)

The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.

Greg

On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

...

Hi Avri,

I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.

That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.

Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org> wrote:

...

Hi,

Ultimately yes, they can all end up in court.

The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.

avri

On 02-Oct-15 18:21, Chris Disspain wrote:

...

I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?

Cheers,

Chris

...

On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:

Hi,

Within ICANN, it rests with the Board.

I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.

avri

On 02-Oct-15 06:57, Chris Disspain wrote:

...

No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.

After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.

Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?

Cheers,

Chris

> On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org > <mailto:avri@acm.org> > <mailto:avri@acm.org>> wrote: > > Hi, > > That was one of my favorite lines as well. > > And is a key point. In the current model, and as far as I can tell in > the MEM, at the end of the day, all always rests "within the Board's > discretion." > > avri > > > On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >> I really LOVE this one: >> >> [...] >> "the Board is required to remedy that violation, within the >> Board’s discretion." >> [...] >> >> (last line on Page 1) > > > --- > This email has been checked for viruses by Avast antivirus software. > https://www.avast.com/antivirus > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Greg, Would you please clarify what you mean by your remark below, in response to Seun's post? I don't understand it. George

On Oct 2, 2015, at 7:55 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

Case dismissed.

On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote: Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".

Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?

My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.

Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.

Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.

I rest my case!

Regards

Sent from my Asus Zenfone2 Kindly excuse brevity and typos.

On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Seun,

You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.

If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)

The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.

Greg

On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote: Hi Avri,

I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.

That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.

Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.

On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> wrote: Hi,

Ultimately yes, they can all end up in court.

The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.

avri

On 02-Oct-15 18:21, Chris Disspain wrote:

...

I don’t disagree with you Avri but isn’t going to court the ultimate enforceability in any of the models/ideas we have been discussing?

Cheers,

Chris

...

On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:

Hi,

Within ICANN, it rests with the Board.

I resist the idea of including going to court as a normal part of our process. I have argued all the way through this process, that going to court is something to be avoided and something we should not consider to be part of the process. Yes at the end of the day it needs to be possible, but it is a failure indication.

avri

On 02-Oct-15 06:57, Chris Disspain wrote:

...

No Avri. At the end of the day it rests with the court as I believe is clear from the note from JD.

After a finding by an arbitration panel that a bylaw has been breached, it is a matter for the Board about how they remedy (as I believe is the case with the member model also) and that remedy is itself subject to a claim that it breaches a bylaw (if the community has consensus). If the Board refuses to abide by the ruling then a court can order them to do so.

Have I misunderstood the way the member model works. I believe Becky has said numerous times that the only finding could be that the relevant bylaw has been breached, NOT that the Board must take a specific action. Is that wrong?

Cheers,

Chris

...

On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:

Hi,

That was one of my favorite lines as well.

And is a key point. In the current model, and as far as I can tell in the MEM, at the end of the day, all always rests "within the Board's discretion."

avri

On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:

...

I really LOVE this one:

[...] "the Board is required to remedy that violation, within the Board’s discretion." [...]

(last line on Page 1)

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I can't speak for anyone else Niger but I have not accepted the MEM and oppose it completely -- Paul Sent from myMail app for Android Saturday, 03 October 2015, 11:41AM -04:00 from Nigel Roberts < nigel@channelisles.net> :

I remain confused. Have we accepted the MEM, because it originated from the Board in a few hours discussion, as being a better alternative than the 9 months of debate originating SMM? (Nothwithstanding that I personally don't like a *SINGLE* member membership model).

The point I'm (repeatedly) making is one of process, not merits of the competing models.

'RULING THE ROOT' -----------------

Over the last 48 hours I've been reading Milton Mueller's excellent history: 'Ruling the Root'. (Hi Milton!). Despite the fact I've seen by personal observation of how Milton can, in person, be at least as "ornery", as Dr Lisse, which might otherwise cloud my judgment, I cannot recommend this book more highly.

It sets out, in exquisite and fully referenced detail, the previous occasions (yes, plural) that "an aggressive timescale" led to unexpected outcomes.

I will be blunt. If you haven't read this book (or done so a long time) then you are failing in your duty towards achieving the goal of the WG and it should be your next task.

I'm actually really sorry I didn't read this months and years ago; just because I lived a large part of it did not prepare me for the fact that this book

(a) synthesises the dynamics that went on in the creation of ICANN and documents it to 'before the dawn of (internet) time'.

(b) provides a cautionary tale.

It seems to me that the CCWG is hell bent on repeating the mistakes of our predecessors rather more closely than I'd already said.

It needs to be required reading for every single ICANN Board Member, GAC rep and member of this CCWG.

And it's available on Kindle.

Nigel Roberts

...

...

On Oct 2, 2015, at 7:55 PM, Greg Shatan < gregshatanipc@gmail.com <mailto: gregshatanipc@gmail.com >> wrote:

Case dismissed.

On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji < seun.ojedeji@gmail.com <mailto: seun.ojedeji@gmail.com >> wrote:

Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".

Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?

My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.

Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.

Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.

I rest my case!

Regards

Sent from my Asus Zenfone2 Kindly excuse brevity and typos.

On 3 Oct 2015 00:27, "Greg Shatan" < gregshatanipc@gmail.com <mailto: gregshatanipc@gmail.com >> wrote:

Seun,

You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.

If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)

The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.

Greg

On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji < seun.ojedeji@gmail.com <mailto: seun.ojedeji@gmail.com >> wrote:

Hi Avri,

I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.

That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.

Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.

On 2 Oct 2015 23:50, "Avri Doria" < avri@acm.org <mailto: avri@acm.org >> wrote:

Hi,

Ultimately yes, they can all end up in court.

The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.

avri

On 02-Oct-15 18:21, Chris Disspain wrote: > I don’t disagree with you Avri but isn’t going to court the ultimate > enforceability in any of the models/ideas we have been discussing? > > > > Cheers, > > > Chris > > >> On 2 Oct 2015, at 21:07 , Avri Doria < avri@acm.org <mailto: avri@acm.org > >> <mailto: avri@acm.org <mailto: avri@acm.org >>> wrote: >> >> Hi, >> >> Within ICANN, it rests with the Board. >> >> I resist the idea of including going to court as a normal part of our >> process. I have argued all the way through this process, that going to >> court is something to be avoided and something we should not consider to >> be part of the process. Yes at the end of the day it needs to be >> possible, but it is a failure indication. >> >> avri >> >> >> On 02-Oct-15 06:57, Chris Disspain wrote: >>> No Avri. At the end of the day it rests with the court as I believe is >>> clear from the note from JD. >>> >>> After a finding by an arbitration panel that a bylaw has been >>> breached, it is a matter for the Board about how they remedy (as I >>> believe is the case with the member model also) and that remedy is >>> itself subject to a claim that it breaches a bylaw (if the community >>> has consensus). If the Board refuses to abide by the ruling then a >>> court can order them to do so. >>> >>> Have I misunderstood the way the member model works. I believe Becky >>> has said numerous times that the only finding could be that the >>> relevant bylaw has been breached, NOT that the Board must take a >>> specific action. Is that wrong? >>> >>> >>> >>> Cheers, >>> >>> >>> Chris >>> >>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria < avri@acm.org <mailto: avri@acm.org > >>>> <mailto: avri@acm.org <mailto: avri@acm.org >> >>>> <mailto: avri@acm.org <mailto: avri@acm.org >>> wrote: >>>> >>>> Hi, >>>> >>>> That was one of my favorite lines as well. >>>> >>>> And is a key point. In the current model, and as far as I can tell in >>>> the MEM, at the end of the day, all always rests "within the Board's >>>> discretion." >>>> >>>> avri >>>> >>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >>>>> I really LOVE this one: >>>>> >>>>> [...] >>>>> "the Board is required to remedy that violation, within the >>>>> Board’s discretion." >>>>> [...] >>>>> >>>>> (last line on Page 1) >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> https://www.avast.com/antivirus >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community@icann.org <mailto: Accountability-Cross-Community@icann.org > >>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> >>> >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community@icann.org <mailto: Accountability-Cross-Community@icann.org > >>> <mailto: Accountability-Cross-Community@icann.org <mailto: Accountability-Cross-Community@icann.org >> >>> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> --- >> This email has been checked for viruses by Avast antivirus software. >> https://www.avast.com/antivirus >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto: Accountability-Cross-Community@icann.org > >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >

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Dear All, This message is address to all of us from A to Z We are all in one way or other .making our utmost efforts in a hardworking and tireless manner and beyond the call for duty to contribute at these critical period to address the mons complex issue of ICANN enhanced accountability. We all know that the ICANN Board severely resists to AGREE to the SMM and promoting its own MEM. As I mentioned in LA, we need to be open-minded and examine all proposals on their merits. There is no proposal which is perfect. There are some which are more responsive to the enhanced accountability and also others which less solid and responsive. We need to look at all proposals and find out whether there rooms/ ways and means to take either one ,if consensus is emerged on that opted model or try to find out whether there is some way out to reach a compromise but o not on the expense of quality or objectives . I am not comfortable to read message with strong tone vis a vis our colleagues. If we have a valid point we should try to sell it with logic, ethic, kindness and mutual respect. May I kindly request all of us to be so kind with each other so as not to be emotional or exceed the limit of a mutually acceptable conversation. It is up to you to agree or disagree. But we could be more productive if we lower the tone and speak with each other nicely, kindly, and respectfully. Kavouss 2015-10-03 18:21 GMT+02:00 Avri Doria <avri@acm.org>:

Hi,

I do not think we all have accepted the inevitability of MEM. But I think those who see great urgency in the transition, knowing that this is possibly the the only thing the Board will agree to*, seem inclined to accept what they can get.

And while it is not the position I take, I can see the logic in that. If you believe that transition is the most important goal, then nothing can be allowed to stand in its way: we should do what the other OCs did, accept that the status quo of the ICANN relationship is good and move on with a few tweaks. For all its problems MEM is an improvement. Until MEM it was declared legally impossible for the Board to ever have binding mediation or arbitration with the community or any part thereof, except for contracted parties within the context of their contract. Last year, before the transition process was initiated, MEM would have been greeted with cries of Hosanna.

I have a paper copy of Milton's book and even read it when i first got involved with ICANN in 2005 and believed it a good introduction to many of the issues. I also recommend people read it. But history does not repeat itself, as juxtaposition of 2 quotes indicates: it may rhyme, but things are never the same, "one can not step in the same river twice." This situation is different, though it may rhyme. One essential difference is that the origins of ICANN included the NTIA backstop until such time as that oversight withered away. Any solution we may come up with will not have that element.

avri

* (Unless of course you assume a party in a negotiation never puts their bottom line as their initial negotiating position)

On 03-Oct-15 11:41, Nigel Roberts wrote:

...

I remain confused. Have we accepted the MEM, because it originated from the Board in a few hours discussion, as being a better alternative than the 9 months of debate originating SMM? (Nothwithstanding that I personally don't like a *SINGLE* member membership model).

The point I'm (repeatedly) making is one of process, not merits of the competing models.

'RULING THE ROOT' -----------------

Over the last 48 hours I've been reading Milton Mueller's excellent history: 'Ruling the Root'. (Hi Milton!). Despite the fact I've seen by personal observation of how Milton can, in person, be at least as "ornery", as Dr Lisse, which might otherwise cloud my judgment, I cannot recommend this book more highly.

It sets out, in exquisite and fully referenced detail, the previous occasions (yes, plural) that "an aggressive timescale" led to unexpected outcomes.

I will be blunt. If you haven't read this book (or done so a long time) then you are failing in your duty towards achieving the goal of the WG and it should be your next task.

I'm actually really sorry I didn't read this months and years ago; just because I lived a large part of it did not prepare me for the fact that this book

(a) synthesises the dynamics that went on in the creation of ICANN and documents it to 'before the dawn of (internet) time'.

(b) provides a cautionary tale.

It seems to me that the CCWG is hell bent on repeating the mistakes of our predecessors rather more closely than I'd already said.

It needs to be required reading for every single ICANN Board Member, GAC rep and member of this CCWG.

And it's available on Kindle.

Nigel Roberts

...

...

On Oct 2, 2015, at 7:55 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:

Case dismissed.

On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:

Greg, I think we bring so much legal stuff into this that makes us forget the element of nature called "choice".

Can you tell me the outcome of a scenario where the community by "choice" decides to ask/mandate board to implement certain things and then if board by choice decides not to implement such request. Does the community go into the implementation without paying recognition to the board or what?

My point was that it is ultimately the judge's verdict that enforce and not necessarily the membership nor MEM. All through the escalation process before courts, the community and/or the board has a choice to make and because there is membership should not be perceived as final except the court says so.

Membership however provides the standing to get to enforce in courts (and such standing is what we are/should also be checking if it exist within MEM). So membership is not itself the end but just the means to the end.

Again focusing on the means(model) and not the end(goals) is what has been prolonging this process for so long. Earlier in this process, I mentioned that some of us have limited resources and cannot continue this aggressive process for so long. Perhaps this process will exhaust some of us and others well motivated can then have their way.

I rest my case!

Regards

Sent from my Asus Zenfone2 Kindly excuse brevity and typos.

On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:

Seun,

You are incorrect about how a US membership non-profit corporation works, and how the membership relates to the Board. In a membership non-profit, the membership has certain superior rights vis a vis the Board. I believe this is clear from the Sidley/Adler documents.

If there is no membership, then the community can only ASK board to do things. That seems to be your desired outcome, but I don't think that is broadly shared within the CCWG. I think this goes beyond even the Board comments, where they are willing to give the Community things that at least look like powers (though subject ultimately to the Board's discretion and judgment)

The only reason I can think that "going to court to enforce would be more closer in the escalation process than we may be thinking" is the tone and approach of this memo.

Greg

On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:

Hi Avri,

I think it needs to be clear that the community can only ASK board to do things, whether they would do it is entirely at the discretion of the board. This is normal for membership setup as the community has no executive status to implement.

That said, I am in full agreement with trying to resolve things locally as much as possible and if you ask me, I don't think membership will encourage that approach. Going to court to enforce would be more closer in the escalation process than we may be thinking.

Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos.

On 2 Oct 2015 23:50, "Avri Doria" <avri@acm.org <mailto:avri@acm.org>> wrote:

Hi,

Ultimately yes, they can all end up in court.

The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.

avri

On 02-Oct-15 18:21, Chris Disspain wrote: > I don’t disagree with you Avri but isn’t going to court the ultimate > enforceability in any of the models/ideas we have been discussing? > > > > Cheers, > > > Chris > > >> On 2 Oct 2015, at 21:07 , Avri Doria <avri@acm.org <mailto:avri@acm.org> >> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: >> >> Hi, >> >> Within ICANN, it rests with the Board. >> >> I resist the idea of including going to court as a normal part of our >> process. I have argued all the way through this process, that going to >> court is something to be avoided and something we should not consider to >> be part of the process. Yes at the end of the day it needs to be >> possible, but it is a failure indication. >> >> avri >> >> >> On 02-Oct-15 06:57, Chris Disspain wrote: >>> No Avri. At the end of the day it rests with the court as I believe is >>> clear from the note from JD. >>> >>> After a finding by an arbitration panel that a bylaw has been >>> breached, it is a matter for the Board about how they remedy (as I >>> believe is the case with the member model also) and that remedy is >>> itself subject to a claim that it breaches a bylaw (if the community >>> has consensus). If the Board refuses to abide by the ruling then a >>> court can order them to do so. >>> >>> Have I misunderstood the way the member model works. I believe Becky >>> has said numerous times that the only finding could be that the >>> relevant bylaw has been breached, NOT that the Board must take a >>> specific action. Is that wrong? >>> >>> >>> >>> Cheers, >>> >>> >>> Chris >>> >>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria <avri@acm.org <mailto:avri@acm.org> >>>> <mailto:avri@acm.org <mailto:avri@acm.org>> >>>> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: >>>> >>>> Hi, >>>> >>>> That was one of my favorite lines as well. >>>> >>>> And is a key point. In the current model, and as far as I can tell in >>>> the MEM, at the end of the day, all always rests "within the Board's >>>> discretion." >>>> >>>> avri >>>> >>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote: >>>>> I really LOVE this one: >>>>> >>>>> [...] >>>>> "the Board is required to remedy that violation, within the >>>>> Board’s discretion." >>>>> [...] >>>>> >>>>> (last line on Page 1) >>>> >>>> >>>> --- >>>> This email has been checked for viruses by Avast antivirus software. >>>> https://www.avast.com/antivirus >>>> >>>> _______________________________________________ >>>> Accountability-Cross-Community mailing list >>>> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>>>

https://mm.icann.org/mailman/listinfo/accountability-cross-community >>> >>> >>> >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >>> <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> >>>

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Hello Avri,

...

The critical issue in my mind is how many steps we can take inside the organizations process to remedy before having to resort to the ultimate nastyness - appearing before a judge. I think each trip to court is a failure to be avoided. Our model needs to deal properly with shared decision making while allowing for problem resolution in a way that avoids such failures.

I agree. We should be focussing on developing our bylaws as our operating rules, to incorporate the community powers sought by the CCWG. We then have a simple independent arbitration mechanism for dealing with cases where there is a disagreement over the interpretation of the bylaws. Finally we have a mechanism for taking legal action against the Board if it does not abide by the arbitration decision (this should have a probability of less than 0.1% of ever happening). It seems we are focussed far too much time on debating the 0.1% situation, and not focussing enough on a set of bylaws that leverages the community structures that have already in most cases have been operating for more than 15 years. For the avoidance of doubt I and the Board have been willing all along to update the bylaws to reflect the new accountability mechanisms requested by the community. The bit that has seemed incredibly strange to me is the assumption that the Board will not abide by its bylaws. You should never elect people to the Board that won't abide by the bylaws, and you should remove people that don't abide by the bylaws - it is that simple to me. I get that there are situations where the Board and community may disagree on whether the Board is following the bylaws - but we have an enhanced IRP process proposed by the CCWG to deal with that. Regards, Bruce Tonkin

Philip, This is exactly why I would like to see, and have asked for, the notes/transcript from their meeting with our Counsel. el -- Sent from Dr Lisse's iPad mini

On 2 Oct 2015, at 20:37, Phil Corwin <psc@vlaw-dc.com> wrote:

I appreciate the spirit of transparency in which this memo was shared.

However, upon initial reading, and now re-reading, it is not at all the type of legal memo I expected, one citing statute and case law for its positions.

It is really more of a lobbying document, and if I received a document like this in a different context (e.g., in regard to an issue being considered by Congress) my presumption would be that the client had told its counsel that it was unwilling to negotiate on a matter and that they were therefore instructed to prepare the strongest possible memo justifying that intransigent position.

[...]

I doubt that NTIA has any fiduciary duty. NTIA's duties are almost certainly statutory. http://www.louisaheinrich.com/wp-content/uploads/2015/03/inigo-montoya_that-... Nigel

On 04/10/15 09:28, Bruce Tonkin wrote:

...

Hello Rudolph,

...

...

Who does the NTIA hold fiduciary duty to? ICANN? Or to Congress?

I think ultimately to USA citizens as represented by their elected political leaders.

Jordan, I respectfully disagree. "Rolling all over the lawn", as you put it, is an understatement. It is the Board's concern if it wants to be led by polemic peddling as legal counsel - the JD "high level" memo could well have been written by an undergraduate student of political science, riffing on governance and instability. JD is probably fulfilling its brief, and may be the Board would like to start asking substantial questions to it. No reason, in my opinion, why the CCWG should deviate from our constructive role. Arun -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272 On Mon, Oct 5, 2015 at 3:39 AM, Nigel Roberts <nigel@channelisles.net> wrote:

s/lawyers/tanks/

On 04/10/15 21:11, Jordan Carter wrote:

...

Thanks Grace for sharing this.

I would like suggest we certify to our lawyers an advocacy request --- that is, the same thing this Jones Day memo is.

Could Sidley and Adler be tasked with a similar memo directed at the Board's MEM idea?

[I am concerned that we have our lawyers answering specific questions, and the Board's lawyers rolling all over the lawn. I would like an even playing field. The memo from JD is an extraordinary document for lawyers to have prepared, but if this is the sort of process we are in, it requires us all to be on a common approach.]

Jordan

On 2 October 2015 at 17:38, Grace Abuhamad <grace.abuhamad@icann.org <mailto:grace.abuhamad@icann.org>> wrote:

Dear all,

Attached please find a memo that Jones Day lawyers just sent to Sidley and Adler to respond to some of the characterizations of Jones Day's advice.

This memo is being forwarded to the CCWG-Accountability for transparency.

This memo was also circulated to the ICANN Board after it was sent to CCWG-Accountability's Counsel.

—Grace

Begin forwarded message:

*From:* Kate Wallace <kwallace@jonesday.com

...

<mailto:kwallace@jonesday.com>> *Date:* October 1, 2015 at 8:49:24 PM PDT *To:* "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>>, "Rosemary E. Fei" <rfei@adlercolvin.com <mailto:rfei@adlercolvin.com>> *Cc:* Lizanne Thomas <lthomas@jonesday.com <mailto:lthomas@jonesday.com>>, <jlevee@jonesday.com <mailto:jlevee@jonesday.com>>, "Kevin B Espinola" <kbespinola@jonesday.com <mailto:kbespinola@jonesday.com>>, John Jeffrey <john.jeffrey@icann.org <mailto:john.jeffrey@icann.org>>, <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org>> *Subject:* *Continued Counsel Dialogue*

Dear Holly and Rosemary,

In an effort to continue our dialogue, please see the attached document responding to some of the issues raised in the slides you distributed on 29 September 2015.

Thanks, Kate

Kate Wallace Partner *_JONES DAY® - One Firm Worldwide_**_℠_* <http://www.jonesday.com/> 555 S. Flower Street, 50th Floor Los Angeles, California 90071 Office +1.213.243.2536 <tel:%2B1.213.243.2536> kwallace@jonesday.com <mailto:kwallace@jonesday.com>

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Chief Executive *InternetNZ*

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