I appreciate the board's input and take it as a good faith effort to enhance and evolve the CCWG proposal. However, I have, with respect, three critiques of it. First, the ability to create a remedy if the MEM panel finds against the board is completely within the board's discretion. Even a slight (even inconsequential) "remedy" would be a remedy and would, effectively, bar any viable avenue to court enforcement. Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board's fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion. And, third, if we went down this path, the board's ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court. David McAuley
Hello David, I appreciate the constructive criticism 😀. Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they? Cheers, Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal. However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi Chris, I am not sure that they are the same but will comment back after this morning’s call. David McAuley From: Chris Disspain [mailto:ceo@auda.org.au] Sent: Tuesday, September 22, 2015 8:06 AM To: McAuley, David Cc: Accountability Cross Community (accountability-cross-community@icann.org) Subject: Re: [CCWG-ACCT] MEM and enforceability Hello David, I appreciate the constructive criticism 😀. Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they? Cheers, Chris On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal. However, I have, with respect, three critiques of it. First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement. Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion. And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court. David McAuley _______________________________________________ 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
Hi Chris, all: The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem. On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no. On the third, that does seem a sensible time frame constraint... best Jordan On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
Hi Jordan, See below. Cheers, Chris
On 22 Sep 2015, at 22:15, Jordan Carter <jordan@internetnz.net.nz> wrote:
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
Yes....still not sure I understand that. In practical terms, is it not correct that in either case the board can claim that to act would be a breach of fiduciary duty and that in both cases that should be appealable and in both cases are the ultimate sanctions not the same? In passing, I think there is a longer discussion to be had about the shifting of fiduciary duty to a member, not least to whom is that member accountable and how can the member be challenged that an act proposed by them is outside fiduciary duty.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
The Board's proposal is also the the arbitration be binding. And David's point is not the bindingness but the ability to create a remedy. Is that not the same in the CCWG model? It's certainly the impression I have got from the discussions with Becky.
On the third, that does seem a sensible time frame constraint...
I agree and it would be required in both cases.
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au> wrote: Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
A better world through a better Internet
hi all, hi Chris: On 23 September 2015 at 00:30, Chris Disspain <ceo@auda.org.au> wrote:
Hi Jordan,
See below.
Cheers,
Chris
On 22 Sep 2015, at 22:15, Jordan Carter <jordan@internetnz.net.nz> wrote:
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
Yes....still not sure I understand that.
It's a critical issue - I think our lawyers will deal with it in a crisp way in what comes out soon, but if not it has to be teased out.
In practical terms, is it not correct that in either case the board can *claim* that to act would be a breach of fiduciary duty and that in both cases that should be appealable and in both cases are the ultimate sanctions not the same?
The Board can of course claim anything, but there are material differences in the fiduciary duties it owes in a membership model. It can't claim that implementing a decision of the member is a breach of those duties, for example.
In passing, I think there is a longer discussion to be had about the shifting of fiduciary duty to a member, not least to whom is that member accountable and how can the member be challenged that an act proposed by them is outside fiduciary duty.
This sounds like a further misunderstanding. Members don't owe fiduciary duties generally speaking, just as the organisations that would comprise the member (the SOs and ACs) don't today. The Board's members do. The existence of a membership system modifies those duties for Board members - they do not breach fiduciary duties in implementing a decision a member has made. This could be a rabbit hole but the point is that the member option has more flexibility in determining matters and does not create impossibilities for the Board where it does so. That's a design feature of the choice of membership.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
The Board's proposal is also the the arbitration be binding. And David's point is not the bindingness but the ability to create a remedy. Is that not the same in the CCWG model? It's certainly the impression I have got from the discussions with Becky.
I'll step away from this - I have deliberately not focused on the IRP, and so can't offer any further comment here. best J
On the third, that does seem a sensible time frame constraint...
I agree and it would be required in both cases.
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
*A better world through a better Internet *
-- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
Thanks Jordan.
This sounds like a further misunderstanding. Members don't owe fiduciary duties generally speaking, just as the organisations that would comprise the member (the SOs and ACs) don't today. The Board's members do. The existence of a membership system modifies those duties for Board members - they do not breach fiduciary duties in implementing a decision a member has made.
I don’t think the membership ’system’ does what you suggest but will be happy to be corrected…... and irrespective, the crux of the ‘issue’ for me is to whom the member is accountable…..something we haven’t actually discussed yet…unless I’ve missed it. Cheers, Chris
On 22 Sep 2015, at 22:38 , Jordan Carter <jordan@internetnz.net.nz> wrote:
hi all, hi Chris:
On 23 September 2015 at 00:30, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote: Hi Jordan,
See below.
Cheers,
Chris
On 22 Sep 2015, at 22:15, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
Yes....still not sure I understand that.
It's a critical issue - I think our lawyers will deal with it in a crisp way in what comes out soon, but if not it has to be teased out.
In practical terms, is it not correct that in either case the board can claim that to act would be a breach of fiduciary duty and that in both cases that should be appealable and in both cases are the ultimate sanctions not the same?
The Board can of course claim anything, but there are material differences in the fiduciary duties it owes in a membership model. It can't claim that implementing a decision of the member is a breach of those duties, for example.
In passing, I think there is a longer discussion to be had about the shifting of fiduciary duty to a member, not least to whom is that member accountable and how can the member be challenged that an act proposed by them is outside fiduciary duty.
This sounds like a further misunderstanding. Members don't owe fiduciary duties generally speaking, just as the organisations that would comprise the member (the SOs and ACs) don't today. The Board's members do. The existence of a membership system modifies those duties for Board members - they do not breach fiduciary duties in implementing a decision a member has made.
This could be a rabbit hole but the point is that the member option has more flexibility in determining matters and does not create impossibilities for the Board where it does so. That's a design feature of the choice of membership.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
The Board's proposal is also the the arbitration be binding. And David's point is not the bindingness but the ability to create a remedy. Is that not the same in the CCWG model? It's certainly the impression I have got from the discussions with Becky.
I'll step away from this - I have deliberately not focused on the IRP, and so can't offer any further comment here.
best J
On the third, that does seem a sensible time frame constraint...
I agree and it would be required in both cases.
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote: Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
_______________________________________________ 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 <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
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-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 <tel:%2B64-4-495-2118> (office) | +64-21-442-649 <tel:%2B64-21-442-649> (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz/>
A better world through a better Internet
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz/>
A better world through a better Internet
Hi, We have not discussed it the accountability of the community in any great detail. Several commenters have brought it up along the way. That is one reason my comments suggest that the Community Mechanism (a confusing overloaded term) also be subject to the IRP. avri On 22-Sep-15 08:47, Chris Disspain wrote:
Thanks Jordan.
This sounds like a further misunderstanding. Members don't owe fiduciary duties generally speaking, just as the organisations that would comprise the member (the SOs and ACs) don't today. The Board's members do. The existence of a membership system modifies those duties for Board members - they do not breach fiduciary duties in implementing a decision a member has made.
I don’t think the membership ’system’ does what you suggest but will be happy to be corrected…... and irrespective, the crux of the ‘issue’ for me is to whom the member is accountable…..something we haven’t actually discussed yet…unless I’ve missed it.
Cheers,
Chris
On 22 Sep 2015, at 22:38 , Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
hi all, hi Chris:
On 23 September 2015 at 00:30, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hi Jordan,
See below.
Cheers,
Chris
On 22 Sep 2015, at 22:15, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
Yes....still not sure I understand that.
It's a critical issue - I think our lawyers will deal with it in a crisp way in what comes out soon, but if not it has to be teased out.
In practical terms, is it not correct that in either case the board can *claim* that to act would be a breach of fiduciary duty and that in both cases that should be appealable and in both cases are the ultimate sanctions not the same?
The Board can of course claim anything, but there are material differences in the fiduciary duties it owes in a membership model. It can't claim that implementing a decision of the member is a breach of those duties, for example.
In passing, I think there is a longer discussion to be had about the shifting of fiduciary duty to a member, not least to whom is that member accountable and how can the member be challenged that an act proposed by them is outside fiduciary duty.
This sounds like a further misunderstanding. Members don't owe fiduciary duties generally speaking, just as the organisations that would comprise the member (the SOs and ACs) don't today. The Board's members do. The existence of a membership system modifies those duties for Board members - they do not breach fiduciary duties in implementing a decision a member has made.
This could be a rabbit hole but the point is that the member option has more flexibility in determining matters and does not create impossibilities for the Board where it does so. That's a design feature of the choice of membership.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
The Board's proposal is also the the arbitration be binding. And David's point is not the bindingness but the ability to create a remedy. Is that not the same in the CCWG model? It's certainly the impression I have got from the discussions with Becky.
I'll step away from this - I have deliberately not focused on the IRP, and so can't offer any further comment here.
best J
On the third, that does seem a sensible time frame constraint...
I agree and it would be required in both cases.
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
_______________________________________________ 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> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 <tel:%2B64-4-495-2118> (office) | +64-21-442-649 <tel:%2B64-21-442-649> (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz/>
/A better world through a better Internet /
-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz/>
/A better world through a better Internet /
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Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not. Thanks, Sam From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> Cc: "Accountability Cross Community (accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>)" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability Hi Chris, all: The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem. On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no. On the third, that does seem a sensible time frame constraint... best Jordan On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Hello David, I appreciate the constructive criticism 😀. Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they? Cheers, Chris On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com<mailto:dmcauley@verisign.com>> wrote: I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal. However, I have, with respect, three critiques of it. First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement. Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion. And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court. David McAuley _______________________________________________ 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> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet
Hi, I think that the fiduciary responsibility does not change. What changes is whether the Board has unilateral and final control of the meaning and implications of its fiduciary responsibility or of the decisions based upon that vision. avri On 22-Sep-15 08:43, Samantha Eisner wrote:
Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> Cc: "Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>)" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
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Avri, But under the MEM and under the sole member model the ultimate arbiter of that would be the courts in California. No? Cheers, Chris
On 22 Sep 2015, at 22:51 , Avri Doria <avri@acm.org> wrote:
Hi,
I think that the fiduciary responsibility does not change. What changes is whether the Board has unilateral and final control of the meaning and implications of its fiduciary responsibility or of the decisions based upon that vision.
avri
On 22-Sep-15 08:43, Samantha Eisner wrote:
Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> Cc: "Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>)" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
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Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz>
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Hi, I would prefer that we avoid needing to use the courts for that purpose. One of the things I argued for in the development of the CM is that relying on the courts would always be as a last resort. Not the initial guarantee. For the multistakeholder model to work we need to resolve the accountability issue within the expanding community as much as possible. This easy resort to US courts is something I find problematic. If the Board's response to an disagreement is "take us to court if you don't like it," we will have failed. avri On 22-Sep-15 08:55, Chris Disspain wrote:
Avri,
But under the MEM and under the sole member model the ultimate arbiter of that would be the courts in California. No?
Cheers,
Chris
On 22 Sep 2015, at 22:51 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I think that the fiduciary responsibility does not change. What changes is whether the Board has unilateral and final control of the meaning and implications of its fiduciary responsibility or of the decisions based upon that vision.
avri
On 22-Sep-15 08:43, Samantha Eisner wrote:
Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz>> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> <mailto:ceo@auda.org.au>> Cc: "Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>)" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> <mailto:ceo@auda.org.au>> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com> <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
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-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz> <http://www.internetnz.nz>
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+ 100 Avri. But we still need to follow the paths that will exist to ensure that we understand how they work and what the consequences are. Cheers, Chris
On 22 Sep 2015, at 23:07 , Avri Doria <avri@acm.org> wrote:
Hi,
I would prefer that we avoid needing to use the courts for that purpose.
One of the things I argued for in the development of the CM is that relying on the courts would always be as a last resort. Not the initial guarantee. For the multistakeholder model to work we need to resolve the accountability issue within the expanding community as much as possible.
This easy resort to US courts is something I find problematic. If the Board's response to an disagreement is "take us to court if you don't like it," we will have failed.
avri
On 22-Sep-15 08:55, Chris Disspain wrote:
Avri,
But under the MEM and under the sole member model the ultimate arbiter of that would be the courts in California. No?
Cheers,
Chris
On 22 Sep 2015, at 22:51 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I think that the fiduciary responsibility does not change. What changes is whether the Board has unilateral and final control of the meaning and implications of its fiduciary responsibility or of the decisions based upon that vision.
avri
On 22-Sep-15 08:43, Samantha Eisner wrote:
Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz>> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> <mailto:ceo@auda.org.au>> Cc: "Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>)" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> <mailto:ceo@auda.org.au>> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com> <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
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Hello Avri,
This easy resort to US courts is something I find problematic. If the Board's response to an disagreement is "take us to court if you don't like it," we will have failed.
Exactly. I am a strong supporter of the independent review mechanism, ensuring the outcomes are binding, and only relying on courts in the unlikely situation that the Board tries to overturn such a decision. I hope it never comes to needing to take the matter to court. WE do need to make sure there is a path for taking it to court, but not put all our effort into the 1% situation. Most of the effort in my view should be to get the independent review mechanisms right. Regards, Bruce Tonkin
Hi all, On 23 September 2015 at 01:18, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au
wrote:
Hello Avri,
This easy resort to US courts is something I find problematic. If the Board's response to an disagreement is "take us to court if you don't like it," we will have failed.
Exactly. I am a strong supporter of the independent review mechanism, ensuring the outcomes are binding, and only relying on courts in the unlikely situation that the Board tries to overturn such a decision. I hope it never comes to needing to take the matter to court. WE do need to make sure there is a path for taking it to court, but not put all our effort into the 1% situation. Most of the effort in my view should be to get the independent review mechanisms right.
+1. The only thing that would guarantee further disputes is no available court recourse. Like many of these powers, clear chains of accountability and dispute resolution help encourage good behaviour by everyone in the system.... J
+1 to this mindset of resolving issues out of courts, and most importantly that there seem to be some level of agreement that either versions would ultimately require going to court when all the options to mediate with board in following it's bylaw (including fundamental) fail. It still brings me to wonder what the community power goal is; to get the board to follow the community's will or to get them to follow the community approved bylaws. If for the later, the question then is whether either of the models can achieve that? From all indications it seem to be a yes for both. Based on this, would it not then be strategic enough to go for the model that achieves less structural change in ICANN since that is not the goal of this working. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Sep 2015 14:09, "Avri Doria" <avri@acm.org> wrote:
Hi,
I would prefer that we avoid needing to use the courts for that purpose.
One of the things I argued for in the development of the CM is that relying on the courts would always be as a last resort. Not the initial guarantee. For the multistakeholder model to work we need to resolve the accountability issue within the expanding community as much as possible.
This easy resort to US courts is something I find problematic. If the Board's response to an disagreement is "take us to court if you don't like it," we will have failed.
avri
On 22-Sep-15 08:55, Chris Disspain wrote:
Avri,
But under the MEM and under the sole member model the ultimate arbiter of that would be the courts in California. No?
Cheers,
Chris
On 22 Sep 2015, at 22:51 , Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I think that the fiduciary responsibility does not change. What changes is whether the Board has unilateral and final control of the meaning and implications of its fiduciary responsibility or of the decisions based upon that vision.
avri
On 22-Sep-15 08:43, Samantha Eisner wrote:
Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz>> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> <mailto:ceo@auda.org.au>> Cc: "Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>)" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> <mailto:ceo@auda.org.au>> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com> <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
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Sorry to pick this up but the CCWG's lawyers explain the nexus between fiduciary responsibilities and the impact of a membership model nicely. It's the relationship of those duties to others' decisions that changes when those others are a member... best Jordan On 23 September 2015 at 02:32, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au
wrote:
Hello Avri,
I think that the fiduciary responsibility does not change.
Yes - that is my understanding of the role of a Board director in any model.
Regards, Bruce Tonkin
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All, I to not want to get into a legal argument, but want to offer an observation. There is a lot of talk about accountability of the community. This is important, no doubt about that. But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that. That means that you need a rogue Community trying to force the Board to do wrong things and - for the wrong things to be resolved - a rogue Board, too. I am adding this thought to the discussion as I get the impression that some think that the Single Member would replace the Board as a decision-making body. Also, let us please remember that there will and must be consultation between the Board and the Community before decisions on the areas where the Community Powers are concerned, are taken. We should maybe think about making this element more visible as it lowers the risk of friction. Also, let me add that we should not focus on Community vs Board accountability / responsiblity. It is a joint responsibility and mutual accountability is what we need. Thomas --- rickert.net
Am 22.09.2015 um 16:32 schrieb Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au>:
Hello Avri,
I think that the fiduciary responsibility does not change.
Yes - that is my understanding of the role of a Board director in any model.
Regards, Bruce Tonkin
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To pick up one of of Thomas's points: Clarifying and illustrating escalation paths (or perhaps we should more optimistically call them "resolution paths") would be very helpful. We (and others) spend a lot of time talking about "last resorts," in part because it's not supremely clear that they come only at the end of a road, which hopefully we get to the end of only rarely. Greg On Thursday, September 24, 2015, Thomas Rickert <rickert@anwaelte.de> wrote:
All, I to not want to get into a legal argument, but want to offer an observation. There is a lot of talk about accountability of the community. This is important, no doubt about that.
But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that.
That means that you need a rogue Community trying to force the Board to do wrong things and - for the wrong things to be resolved - a rogue Board, too.
I am adding this thought to the discussion as I get the impression that some think that the Single Member would replace the Board as a decision-making body.
Also, let us please remember that there will and must be consultation between the Board and the Community before decisions on the areas where the Community Powers are concerned, are taken. We should maybe think about making this element more visible as it lowers the risk of friction.
Also, let me add that we should not focus on Community vs Board accountability / responsiblity. It is a joint responsibility and mutual accountability is what we need.
Thomas
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Am 22.09.2015 um 16:32 schrieb Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au <javascript:_e(%7B%7D,'cvml','Bruce.Tonkin@melbourneit.com.au');>>:
Hello Avri,
I think that the fiduciary responsibility does not change.
Yes - that is my understanding of the role of a Board director in any model.
Regards, Bruce Tonkin
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Completely agree with Greg - escalation and a greater description of escalation/resolution paths is something that should be worked on. On 24/09/2015 07:16, Greg Shatan wrote:
To pick up one of of Thomas's points: Clarifying and illustrating escalation paths (or perhaps we should more optimistically call them "resolution paths") would be very helpful. We (and others) spend a lot of time talking about "last resorts," in part because it's not supremely clear that they come only at the end of a road, which hopefully we get to the end of only rarely.
Greg
On Thursday, September 24, 2015, Thomas Rickert <rickert@anwaelte.de <mailto:rickert@anwaelte.de>> wrote:
All, I to not want to get into a legal argument, but want to offer an observation. There is a lot of talk about accountability of the community. This is important, no doubt about that.
But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that.
That means that you need a rogue Community trying to force the Board to do wrong things and - for the wrong things to be resolved - a rogue Board, too.
I am adding this thought to the discussion as I get the impression that some think that the Single Member would replace the Board as a decision-making body.
Also, let us please remember that there will and must be consultation between the Board and the Community before decisions on the areas where the Community Powers are concerned, are taken. We should maybe think about making this element more visible as it lowers the risk of friction. Also, let me add that we should not focus on Community vs Board accountability / responsiblity. It is a joint responsibility and mutual accountability is what we need.
Thomas
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Am 22.09.2015 um 16:32 schrieb Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <javascript:_e(%7B%7D,'cvml','Bruce.Tonkin@melbourneit.com.au');>>:
Hello Avri,
I think that the fiduciary responsibility does not change.
Yes - that is my understanding of the role of a Board director in any model.
Regards, Bruce Tonkin
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Thomas: Also, let me add that we should not focus on Community vs Board accountability / responsiblity. It is a joint responsibility and mutual accountability is what we need. Wolfgang: 1+ w
Thanks Thomas.
But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that.
And then what? Cheers, Chris
On 24 Sep 2015, at 16:08 , Thomas Rickert <rickert@anwaelte.de> wrote:
All, I to not want to get into a legal argument, but want to offer an observation. There is a lot of talk about accountability of the community. This is important, no doubt about that.
But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that.
That means that you need a rogue Community trying to force the Board to do wrong things and - for the wrong things to be resolved - a rogue Board, too.
I am adding this thought to the discussion as I get the impression that some think that the Single Member would replace the Board as a decision-making body.
Also, let us please remember that there will and must be consultation between the Board and the Community before decisions on the areas where the Community Powers are concerned, are taken. We should maybe think about making this element more visible as it lowers the risk of friction.
Also, let me add that we should not focus on Community vs Board accountability / responsiblity. It is a joint responsibility and mutual accountability is what we need.
Thomas
--- rickert.net <http://rickert.net/>
Am 22.09.2015 um 16:32 schrieb Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>>:
Hello Avri,
I think that the fiduciary responsibility does not change.
Yes - that is my understanding of the role of a Board director in any model.
Regards, Bruce Tonkin
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Chris asks... On 25 September 2015 at 12:34, Chris Disspain <ceo@auda.org.au> wrote:
Thanks Thomas.
But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that.
And then what?
Well, presumably, that's that. The community would find that any other director it tried to appoint would find the same constraints, right? And if the issue isn't a clear cut one which, I suppose, often they aren't, they could appoint directors with a different view. And then life goes on.... J
Jordan & Thomas, My understanding of the SMM is that the SMM has, in certain areas, the ultimate right to direct Board action. These areas are dictated by California law and cannot be limited via the Bylaws. As a result, once the member makes a determination, while it may invite the Board to express a view, the member's determination is final unless the member changes its mind. Further, particularly in the exercise of statutory rights, there is nothing in the CCWG work to date that suggests that the SMM vote would be subject to Board ratification, and on certain enumerated powers, Board ratification would be legally irrelevant in all events. It is not clear to me what decisions are being referred to that would "still be made by the Board." Sam From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Date: Thursday, September 24, 2015 at 5:48 PM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability Chris asks... On 25 September 2015 at 12:34, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Thanks Thomas. But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that. And then what? Well, presumably, that's that. The community would find that any other director it tried to appoint would find the same constraints, right? And if the issue isn't a clear cut one which, I suppose, often they aren't, they could appoint directors with a different view. And then life goes on.... J
Hi, All of the decisions would still be made by board, except for the two they would need to share: - bylaw changes - CWG required separation powers For all their other decisions they still do the deciding, we just get a real ability to appeal instead of being stuck with whatever they decide to do. avri On 24-Sep-15 18:55, Samantha Eisner wrote:
Jordan & Thomas,
My understanding of the SMM is that the SMM has, in certain areas, the ultimate right to direct Board action. These areas are dictated by California law and cannot be limited via the Bylaws. As a result, once the member makes a determination, while it may invite the Board to express a view, the member's determination is final unless the member changes its mind. Further, particularly in the exercise of statutory rights, there is nothing in the CCWG work to date that suggests that the SMM vote would be subject to Board ratification, and on certain enumerated powers, Board ratification would be legally irrelevant in all events. It is not clear to me what decisions are being referred to that would “still be made by the Board.”
Sam
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Date: Thursday, September 24, 2015 at 5:48 PM To: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability
Chris asks...
On 25 September 2015 at 12:34, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
Thanks Thomas.
But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that.
And then what?
Well, presumably, that's that. The community would find that any other director it tried to appoint would find the same constraints, right? And if the issue isn't a clear cut one which, I suppose, often they aren't, they could appoint directors with a different view.
And then life goes on....
J
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On 25 Sep 2015, at 04:54, Samantha Eisner <Samantha.Eisner@icann.org> wrote:
My understanding of the SMM is that the SMM has, in certain areas, the ultimate right to direct Board action. These areas are dictated by California law and cannot be limited via the Bylaws. As a result, once the member makes a determination, while it may invite the Board to express a view, the member's determination is final unless the member changes its mind. Further, particularly in the exercise of statutory rights, there is nothing in the CCWG work to date that suggests that the SMM vote would be subject to Board ratification, and on certain enumerated powers, Board ratification would be legally irrelevant in all events. It is not clear to me what decisions are being referred to that would “still be made by the Board.”
I think this is true, but only in relation to certain decisions, namely i) the exercise of the five specific community powers we are granting to the Sole Member; and ii) notionally, to statutory powers of members (but note that we are effectively removing all but one of these by setting a deliberately impossibly high standard to exercise them). So in answer to your question as to "what decisions are being referred to that would “still be made by the Board.”", the answer is "everything, other than the narrowly specific backstop powers of the Sole Member". Even in those cases, the level of consensus required to get the Sole Member to act is very high. Under the CCWG proposal the Board will continue running the corporation. The idea that the Sole Member would be able to wade in and start overriding Board decisions all over the place, substituting its judgement for that of the Board, is wholly unfounded.
On 23 Sep 2015, at 23:08, Thomas Rickert <rickert@anwaelte.de> wrote:
All, I to not want to get into a legal argument, but want to offer an observation. There is a lot of talk about accountability of the community. This is important, no doubt about that.
But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that.
….and Thomas I would appreciate it if you could explain what happens next. My reading of the CCWG proposal is that if the community-empowerment mechanism does not like what the Board has done, it can remove the Board individually or collectively. Hence, the new community empowerment mechanism in fact has the ultimate power to control the core activities of ICANN. There will therefore be a de facto transfer of power in favour of the community without a corresponding transfer in accountability . Do you disagree? Cherine
That means that you need a rogue Community trying to force the Board to do wrong things and - for the wrong things to be resolved - a rogue Board, too.
I am adding this thought to the discussion as I get the impression that some think that the Single Member would replace the Board as a decision-making body.
Also, let us please remember that there will and must be consultation between the Board and the Community before decisions on the areas where the Community Powers are concerned, are taken. We should maybe think about making this element more visible as it lowers the risk of friction.
Also, let me add that we should not focus on Community vs Board accountability / responsiblity. It is a joint responsibility and mutual accountability is what we need.
Thomas
--- rickert.net <http://rickert.net/>
Am 22.09.2015 um 16:32 schrieb Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>>:
Hello Avri,
I think that the fiduciary responsibility does not change.
Yes - that is my understanding of the role of a Board director in any model.
Regards, Bruce Tonkin
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Sam, as I just noted to Chris, the lawyers need to flesh that out. As a matter of principle, on the narrow scope of decisions the member is allocated in the CCWG's second draft proposal, complying with those decisions does not give rise to a breach of directors' fiduciary duties -- even if, in the absence of such a model (e.g. if there was no member and it was simply a "recommendation" from some kind of community group), it was held to do so. Chris: your latest just gets back to the endless chain of accountability discussion that we've come to now and again since the Istanbul meeting. To recap: given that the body being held to account (ICANN's Board) is shifting from a situation of external accountability (NTIA contract) to internal community accountability (through this system), the only option we have is for stakeholders organised in some way to fulfil that function, along with the mutual accountability that can arise from the Forum proposal. Those people, the participants in the various SOs and ACs, are the people to whom ICANN needs to be accountable. They are the direct users and interested indirect users who choose to participate in this ICANN project. If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved. That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews? cheers! Jordan On 23 September 2015 at 00:43, Samantha Eisner <Samantha.Eisner@icann.org> wrote:
Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org> on behalf of Jordan Carter <jordan@internetnz.net.nz> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au> Cc: "Accountability Cross Community ( accountability-cross-community@icann.org)" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
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If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved.
That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews?
Are those 2 statements not contradictory? Either we can resolve or we can’t. If we can’t then I believe that is a flaw in the plan and if we can resolve then I believe we should do so as part of our current work. Cheers, Chris
On 22 Sep 2015, at 22:52 , Jordan Carter <jordan@internetnz.net.nz> wrote:
Sam, as I just noted to Chris, the lawyers need to flesh that out. As a matter of principle, on the narrow scope of decisions the member is allocated in the CCWG's second draft proposal, complying with those decisions does not give rise to a breach of directors' fiduciary duties -- even if, in the absence of such a model (e.g. if there was no member and it was simply a "recommendation" from some kind of community group), it was held to do so.
Chris: your latest just gets back to the endless chain of accountability discussion that we've come to now and again since the Istanbul meeting.
To recap: given that the body being held to account (ICANN's Board) is shifting from a situation of external accountability (NTIA contract) to internal community accountability (through this system), the only option we have is for stakeholders organised in some way to fulfil that function, along with the mutual accountability that can arise from the Forum proposal.
Those people, the participants in the various SOs and ACs, are the people to whom ICANN needs to be accountable. They are the direct users and interested indirect users who choose to participate in this ICANN project.
If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved.
That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews?
cheers! Jordan
On 23 September 2015 at 00:43, Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> wrote: Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> Cc: "Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>)" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote: Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
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A better world through a better Internet
Two entirely different issues. The issue of SO/AC accountability to the communities that organise through them is identified as one that is beyond Work Stream 1, because it is an enduring and ongoing iCANN issue. If you'd like to promote that into WS1, could you tease out the logic a bit more? Improvements or consideration of that question does not resolve the "who watches the watchers" matter implicit in the other point. We can 'resolve' that by accepting that mutual accountability is important but that in the end, separations of responsibilities and clear rules along with transparency are the best we, or any other governance system, can manage. my tuppence! J On 23 September 2015 at 01:00, Chris Disspain <ceo@auda.org.au> wrote:
If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved.
That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews?
Are those 2 statements not contradictory? Either we can resolve or we can’t. If we can’t then I believe that is a flaw in the plan and if we can resolve then I believe we should do so as part of our current work.
Cheers,
Chris
On 22 Sep 2015, at 22:52 , Jordan Carter <jordan@internetnz.net.nz> wrote:
Sam, as I just noted to Chris, the lawyers need to flesh that out. As a matter of principle, on the narrow scope of decisions the member is allocated in the CCWG's second draft proposal, complying with those decisions does not give rise to a breach of directors' fiduciary duties -- even if, in the absence of such a model (e.g. if there was no member and it was simply a "recommendation" from some kind of community group), it was held to do so.
Chris: your latest just gets back to the endless chain of accountability discussion that we've come to now and again since the Istanbul meeting.
To recap: given that the body being held to account (ICANN's Board) is shifting from a situation of external accountability (NTIA contract) to internal community accountability (through this system), the only option we have is for stakeholders organised in some way to fulfil that function, along with the mutual accountability that can arise from the Forum proposal.
Those people, the participants in the various SOs and ACs, are the people to whom ICANN needs to be accountable. They are the direct users and interested indirect users who choose to participate in this ICANN project.
If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved.
That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews?
cheers! Jordan
On 23 September 2015 at 00:43, Samantha Eisner <Samantha.Eisner@icann.org> wrote:
Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org> on behalf of Jordan Carter <jordan@internetnz.net.nz> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au> Cc: "Accountability Cross Community ( accountability-cross-community@icann.org)" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au> wrote:
Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
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-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
*A better world through a better Internet *
-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
*A better world through a better Internet *
-- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
We can 'resolve' that by accepting that mutual accountability is important but that in the end, separations of responsibilities and clear rules along with transparency are the best we, or any other governance system, can manage.
I disagree. Under the Board’s proposal there is a focussed point that can be ‘attacked' and put to arbitration and eventual judicial decision. Under the member model there is a gap because the same things cannot happen to the member. In the Board’s proposal the ultimate responsibility is the Board’s subject to binding arbitration and court enforcement. In the CCWG model the ultimate responsibility is the member but to whom are they accountable under the mission of ICANN that we must act in the global public interest. Cheers, Chris
On 22 Sep 2015, at 23:22 , Jordan Carter <jordan@internetnz.net.nz> wrote:
Two entirely different issues. The issue of SO/AC accountability to the communities that organise through them is identified as one that is beyond Work Stream 1, because it is an enduring and ongoing iCANN issue.
If you'd like to promote that into WS1, could you tease out the logic a bit more?
Improvements or consideration of that question does not resolve the "who watches the watchers" matter implicit in the other point. We can 'resolve' that by accepting that mutual accountability is important but that in the end, separations of responsibilities and clear rules along with transparency are the best we, or any other governance system, can manage.
my tuppence!
J
On 23 September 2015 at 01:00, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote:
If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved.
That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews?
Are those 2 statements not contradictory? Either we can resolve or we can’t. If we can’t then I believe that is a flaw in the plan and if we can resolve then I believe we should do so as part of our current work.
Cheers,
Chris
On 22 Sep 2015, at 22:52 , Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
Sam, as I just noted to Chris, the lawyers need to flesh that out. As a matter of principle, on the narrow scope of decisions the member is allocated in the CCWG's second draft proposal, complying with those decisions does not give rise to a breach of directors' fiduciary duties -- even if, in the absence of such a model (e.g. if there was no member and it was simply a "recommendation" from some kind of community group), it was held to do so.
Chris: your latest just gets back to the endless chain of accountability discussion that we've come to now and again since the Istanbul meeting.
To recap: given that the body being held to account (ICANN's Board) is shifting from a situation of external accountability (NTIA contract) to internal community accountability (through this system), the only option we have is for stakeholders organised in some way to fulfil that function, along with the mutual accountability that can arise from the Forum proposal.
Those people, the participants in the various SOs and ACs, are the people to whom ICANN needs to be accountable. They are the direct users and interested indirect users who choose to participate in this ICANN project.
If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved.
That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews?
cheers! Jordan
On 23 September 2015 at 00:43, Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org>> wrote: Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer? As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.
Thanks,
Sam
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Date: Tuesday, September 22, 2015 at 5:15 AM To: Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> Cc: "Accountability Cross Community (accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>)" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] MEM and enforceability
Hi Chris, all:
The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.
On the third, that does seem a sensible time frame constraint...
best Jordan
On 23 September 2015 at 00:06, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> wrote: Hello David,
I appreciate the constructive criticism 😀.
Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
Cheers,
Chris
On 22 Sep 2015, at 21:59, McAuley, David <dmcauley@verisign.com <mailto:dmcauley@verisign.com>> wrote:
I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.
First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.
And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.
David McAuley
_______________________________________________ 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 <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
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-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 <tel:%2B64-4-495-2118> (office) | +64-21-442-649 <tel:%2B64-21-442-649> (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz/>
A better world through a better Internet
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 <tel:%2B64-4-495-2118> (office) | +64-21-442-649 <tel:%2B64-21-442-649> (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz/>
A better world through a better Internet
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz/>
A better world through a better Internet
Chris, Sorry for chiming in but I believe the point below deserves our full attention. It is indeed apparent in some contributions that the key concern about the single member model lies in a (at least perceived) lack of accountability of the SO and ACs. The CCWG report was recommending to add SO/AC accountability to the list of topics reviewed on a regular basis under the Board's supervision. And work further in WS2. This did not seem to properly address the concerns. Did the Board spend time considering what enhancements to SO/AC accountability systems would bring these bodies to a level of accountability which would be felt appropriate ? Or what the current (perceived, at least) accountability issues were ? It would immensely valuable to our group if you or other Board members (or other stakeholders who shared that view) could provide additional details on this, because I believe this is absolutely central in the discussion regarding the single member model, but may not have been totally, explicitly stated so far. Best, Mathieu Le 22/09/2015 15:31, Chris Disspain a écrit :
I disagree. Under the Board’s proposal there is a focussed point that can be ‘attacked' and put to arbitration and eventual judicial decision. Under the member model there is a gap because the same things cannot happen to the member. In the Board’s proposal the ultimate responsibility is the Board’s subject to binding arbitration and court enforcement. In the CCWG model the ultimate responsibility is the member but to whom are they accountable under the mission of ICANN that we must act in the global public interest.
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
Will do Mathieu. As soon as I can. Definitely in next day or so. Cheers, Chris
On 22 Sep 2015, at 23:40 , Mathieu Weill <Mathieu.Weill@afnic.fr> wrote:
Chris,
Sorry for chiming in but I believe the point below deserves our full attention. It is indeed apparent in some contributions that the key concern about the single member model lies in a (at least perceived) lack of accountability of the SO and ACs.
The CCWG report was recommending to add SO/AC accountability to the list of topics reviewed on a regular basis under the Board's supervision. And work further in WS2. This did not seem to properly address the concerns.
Did the Board spend time considering what enhancements to SO/AC accountability systems would bring these bodies to a level of accountability which would be felt appropriate ? Or what the current (perceived, at least) accountability issues were ?
It would immensely valuable to our group if you or other Board members (or other stakeholders who shared that view) could provide additional details on this, because I believe this is absolutely central in the discussion regarding the single member model, but may not have been totally, explicitly stated so far.
Best, Mathieu
Le 22/09/2015 15:31, Chris Disspain a écrit :
I disagree. Under the Board’s proposal there is a focussed point that can be ‘attacked' and put to arbitration and eventual judicial decision. Under the member model there is a gap because the same things cannot happen to the member. In the Board’s proposal the ultimate responsibility is the Board’s subject to binding arbitration and court enforcement. In the CCWG model the ultimate responsibility is the member but to whom are they accountable under the mission of ICANN that we must act in the global public interest.
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill *****************************
participants (14)
-
"Kleinwächter, Wolfgang" -
Avri Doria -
Bruce Tonkin -
Cherine Chalaby -
Chris Disspain -
Greg Shatan -
Jordan Carter -
Malcolm Hutty -
Mathieu Weill -
Matthew Shears -
McAuley, David -
Samantha Eisner -
Seun Ojedeji -
Thomas Rickert