I'm pretty sure the NTIA has no feeling at all on the membership model beyond whether it can get enough support. What both Strickling and Magaziner want is a solution rather than a punch up. I'm a little saddened that Steve decided to do what he did. And I'm disappointed that the Board is for whatever reason unable to act with humility. But then if it were able to act how we feel it ought to, this conversation wouldn't be happening. As for this talk about people's hidden motivations, I'm surprised to hear that from you Stephen. That's level of baseless paranoia is normally reserved for the alpha males on the Board. Kieren On Sat, Sep 26, 2015 at 5:55 PM Stephen Deerhake <sdeerhake@nic.as> wrote:

I'm not sure that all the "blame" should go to Steve and the Board.

It is very clear to me, from both the recent blog post, and what Larry Strickland said yesterday, that NTIA will REJECT the proposal as it's shaping up, both because of its complexity and because of the proposed membership model.

What Larry stated yesterday was reinforced today by Ira. Thus it's my contention that if the WG continues down this path, this project will fail. Maybe that's what some members of the WG want; I don't know…

Cheers.

Stephen Deerhake

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Jordan Carter *Sent:* Saturday, September 26, 2015 8:19 PM *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* CCWG Accountability <accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Summary of current Board sentiment

Hi all

I think it is worth also putting on the record Steve's clarification in the Adobe room:

"The Board does not support the single member model. We are unified in wanting to work with the community to find practical solutions to achieve the additional levels of accountability sought by the community including the ability to remove Board members and the whole Board, requiring community approval of bylaws changes, and requiring the Board to work with the community to reach consensus on strategic plans, operating plans and budgets."

My understanding from this and from the rest of Steve's remarks this afternoon is quite clear: it is that if the CCWG comes to consensus around the Single Member model, the Board will not accept that proposal.

Bruce, Steve, any other directors:

If I am wrong, please let me know.

thanks,

Jordan

On 26 September 2015 at 17:05, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:

Hello All,

I am hearing that there may have been some misunderstandings of Steve's comments earlier about the willingness of the Board to work with the CCWG and the wider community on implementing the accountability improvements.

I just want to clarify:

The Board supports the Board public comments that were sent a couple weeks ago.

The Board supports the improvements to accountability recommended by the CCWG - including improvements to the IRP, processes to remove Board members and the whole Board, requiring community approval of bylaws changes, and requiring the Board to work with the community to reach consensus on strategic plans, operating plans and budgets.

The Board is very open to continuing to work with the CCWG to find the most effective way of implementing these important accountability changes. The Board put forward the MEM proposal for consideration by the CCWG as an alternative to the single member model for enforcement of new accountability measures in the bylaws, but recognizes that there may be other alternatives that are more effective. The discussions in the CCWG this afternoon highlight that there is a way forward to discuss how to effectively implement the accountability improvements.

Regards, Bruce Tonkin

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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 *

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Hi Malcolm, I see your point below that "The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM.² I¹m resending my response from 24 September on this same issue - In the unlikely event that ICANN refuses to participate in the MEM, the MEM arbitration would still take place and ICANN would suffer the equivalent of a default judgment against it for not participating in the MEM, and that declaration would be binding and enforceable. If the Board believes that an action should be insulated because of its fiduciary duties, it can¹t avoid a negative finding on that because ICANN fails to participate and defend itself. Regards, Sam On 9/27/15, 2:14 AM, "accountability-cross-community-bounces@icann.org on behalf of Malcolm Hutty" <accountability-cross-community-bounces@icann.org on behalf of malcolm@linx.net> wrote:

On 2015-09-27 01:55, Stephen Deerhake wrote:

...

Thus it's my contention that if the WG continues down this path, this project will fail. Maybe that's what some members of the WG want; I don't knowŠ

If backed into a corner, so be it. I challenge your implication that a willingness to contemplate continuation of the status quo constitutes bad faith.

There are many of us who approached this CCWG in good faith (and invested huge amounts of time and effort in trying to make it work) but who still have "red lines" - minimum requirements without which they would prefer that transition did not proceed.

I count myself within that class. My own red line is that an aggrieved registrant who stands to lose their domain as a result of ICANN policy must have the right to challenge the legitimacy of that policy on the grounds that it is outside ICANN's scope, and that that challenge must be before a fair and objective independent panel with the power to quash the policy. We have made considerable progress toward this goal. So far, the panel, its independence, its decision-making standard and (I think) its power, have all been accepted. But as for the *right* to challenge, while the Board says it is willing to accept this in principle, it rejects the SMM, which is the only mechanism we have found for making the right to seek redress enforceable. By that I mean, the SMM is the only mechanism which could correct and force ICANN to enter into the IRP if, in a particular case, it refused to do so. The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM.

This is a problem for me. I have no difficulty or embarrassment about saying that I would prefer that the entire transition failed than that it proceed without a satisfactory resolution of this point.

But my own red line is really very modest. Some may have more ambitious demands, and I don't think that that would be illegitimate. Consider how we began this whole process.

The NTIA has exercised a historic stewardship of the DNS and a de facto oversight of ICANN. NTIA periodically imposes on ICANN a new contract, one that ICANN simply cannot reject. As a consequence, NTIA has the effective and enforceable powers to initiate and enforce change in ICANN. As a result of this special relationship NTIA was in a position to, and did in fact, effect change within ICANN that nobody else would have been capable of bringing about.

When we began this process, NTIA declared that it wanted a proposal to transition its historic role to the global multistakeholder community. If some people interpreted this as meaning that the global multistakeholder community must gain an effective and enforceable mechanism to bring about change within ICANN, over the heads of a Board that resisted that change, I wouldn't think that would be an unreasonable reading of what was offered. Nor do I think it would be unreasonable for someone to conclude that the CCWG's proposal - much less the Board's counter-proposal - falls significantly short of that ambition. So if someone concluded that it was better to remain with the current position where at least /someone/ had the power to force ICANN to change (especially since the NTIA's record in this regard is known and benign) then I don't think it would be fair to cast a person with such a view as unreasonable or as some sort of saboteur.

But as I say, I am not myself demanding the full accountability of ICANN and the complete subordination of its institutional bureaucracy to the global multistakeholder community. If I can be certain that it can be contained within its defined scope, I will be satisfied. Sadly, as of today, I am not being offered even that much.

Kind Regards,

Malcolm.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

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as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below.

Could I please ask Holly and Rosemary to confirm that Malcolm is correct in his understanding of the legal advice? Cheers, Chris

On 28 Sep 2015, at 05:06 , Malcolm Hutty <malcolm@linx.net> wrote:

Thank you Samantha, that is very helpful. I think it shows a route forward, if not necessarily an easy one.

The problem is this: as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below. For what it's worth (very little I admit), neither do I know of any basis for a court to uphold a default judgment rendered by an arbitration panel against a party that had not agreed to enter arbitration.

But your assertion is still helpful in narrowing the issue. If it is indeed shown that you are correct, and that it is clear that the Californian courts would indeed uphold an arbitration ruling notwithstanding that ICANN had refused to enter arbitration, then I will seriously reexamine my position (by which I mean, I do not now know any reason why under such circumstances I would not be prepared to accept MEM, or other proposals of such like). I do not make any great claims for myself, but if anyone should share my view or choose to be guided by my analysis, this could be a step forward.

I must, however, ask you: can you reciprocate? If it is shown that our advisors are right and you are not, and that accordingly the courts would not enforce a "default judgment" against ICANN by an arbitration panel unless it had previously agreed to enter arbitration through the IRP, will you similarly accept that only a membership based solution is acceptable?

Perhaps this is an unfair question: you are an employee and may not be authorised to make such a concession. I am an employee too, with limited authority, so I sympathise. In which case, please consider the same question directed at any Board members who care to take it up.

Malcolm.

...

On 27 Sep 2015, at 20:27, Samantha Eisner <Samantha.Eisner@icann.org> wrote:

Hi Malcolm, I see your point below that "The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM.²

I¹m resending my response from 24 September on this same issue -

In the unlikely event that ICANN refuses to participate in the MEM, the MEM arbitration would still take place and ICANN would suffer the equivalent of a default judgment against it for not participating in the MEM, and that declaration would be binding and enforceable. If the Board believes that an action should be insulated because of its fiduciary duties, it can¹t avoid a negative finding on that because ICANN fails to participate and defend itself.

Regards,

Sam

On 9/27/15, 2:14 AM, "accountability-cross-community-bounces@icann.org on behalf of Malcolm Hutty" <accountability-cross-community-bounces@icann.org on behalf of malcolm@linx.net> wrote:

...

...

On 2015-09-27 01:55, Stephen Deerhake wrote:

Thus it's my contention that if the WG continues down this path, this project will fail. Maybe that's what some members of the WG want; I don't knowŠ

If backed into a corner, so be it. I challenge your implication that a willingness to contemplate continuation of the status quo constitutes bad faith.

There are many of us who approached this CCWG in good faith (and invested huge amounts of time and effort in trying to make it work) but who still have "red lines" - minimum requirements without which they would prefer that transition did not proceed.

I count myself within that class. My own red line is that an aggrieved registrant who stands to lose their domain as a result of ICANN policy must have the right to challenge the legitimacy of that policy on the grounds that it is outside ICANN's scope, and that that challenge must be before a fair and objective independent panel with the power to quash the policy. We have made considerable progress toward this goal. So far, the panel, its independence, its decision-making standard and (I think) its power, have all been accepted. But as for the *right* to challenge, while the Board says it is willing to accept this in principle, it rejects the SMM, which is the only mechanism we have found for making the right to seek redress enforceable. By that I mean, the SMM is the only mechanism which could correct and force ICANN to enter into the IRP if, in a particular case, it refused to do so. The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM.

This is a problem for me. I have no difficulty or embarrassment about saying that I would prefer that the entire transition failed than that it proceed without a satisfactory resolution of this point.

But my own red line is really very modest. Some may have more ambitious demands, and I don't think that that would be illegitimate. Consider how we began this whole process.

The NTIA has exercised a historic stewardship of the DNS and a de facto oversight of ICANN. NTIA periodically imposes on ICANN a new contract, one that ICANN simply cannot reject. As a consequence, NTIA has the effective and enforceable powers to initiate and enforce change in ICANN. As a result of this special relationship NTIA was in a position to, and did in fact, effect change within ICANN that nobody else would have been capable of bringing about.

When we began this process, NTIA declared that it wanted a proposal to transition its historic role to the global multistakeholder community. If some people interpreted this as meaning that the global multistakeholder community must gain an effective and enforceable mechanism to bring about change within ICANN, over the heads of a Board that resisted that change, I wouldn't think that would be an unreasonable reading of what was offered. Nor do I think it would be unreasonable for someone to conclude that the CCWG's proposal - much less the Board's counter-proposal - falls significantly short of that ambition. So if someone concluded that it was better to remain with the current position where at least /someone/ had the power to force ICANN to change (especially since the NTIA's record in this regard is known and benign) then I don't think it would be fair to cast a person with such a view as unreasonable or as some sort of saboteur.

But as I say, I am not myself demanding the full accountability of ICANN and the complete subordination of its institutional bureaucracy to the global multistakeholder community. If I can be certain that it can be contained within its defined scope, I will be satisfied. Sadly, as of today, I am not being offered even that much.

Kind Regards,

Malcolm.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

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Once the question is certified to us, we are happy to reply. HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Sunday, September 27, 2015 4:39 PM To: Chris Disspain Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Summary of current Board sentiment +1 this is helpful. Thanks Malcolm for rather focusing on how to achieve our collective goals and thanks Chris for directing the query accordingly. Will be good to read ccwg legal view on the point raised. I hope the Co-Chairs "as per process" would direct this to the legal team. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 27 Sep 2015 12:12, "Chris Disspain" <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below. Could I please ask Holly and Rosemary to confirm that Malcolm is correct in his understanding of the legal advice? Cheers, Chris On 28 Sep 2015, at 05:06 , Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: Thank you Samantha, that is very helpful. I think it shows a route forward, if not necessarily an easy one. The problem is this: as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below. For what it's worth (very little I admit), neither do I know of any basis for a court to uphold a default judgment rendered by an arbitration panel against a party that had not agreed to enter arbitration. But your assertion is still helpful in narrowing the issue. If it is indeed shown that you are correct, and that it is clear that the Californian courts would indeed uphold an arbitration ruling notwithstanding that ICANN had refused to enter arbitration, then I will seriously reexamine my position (by which I mean, I do not now know any reason why under such circumstances I would not be prepared to accept MEM, or other proposals of such like). I do not make any great claims for myself, but if anyone should share my view or choose to be guided by my analysis, this could be a step forward. I must, however, ask you: can you reciprocate? If it is shown that our advisors are right and you are not, and that accordingly the courts would not enforce a "default judgment" against ICANN by an arbitration panel unless it had previously agreed to enter arbitration through the IRP, will you similarly accept that only a membership based solution is acceptable? Perhaps this is an unfair question: you are an employee and may not be authorised to make such a concession. I am an employee too, with limited authority, so I sympathise. In which case, please consider the same question directed at any Board members who care to take it up. Malcolm. On 27 Sep 2015, at 20:27, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Malcolm, I see your point below that "The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM.² I¹m resending my response from 24 September on this same issue - In the unlikely event that ICANN refuses to participate in the MEM, the MEM arbitration would still take place and ICANN would suffer the equivalent of a default judgment against it for not participating in the MEM, and that declaration would be binding and enforceable. If the Board believes that an action should be insulated because of its fiduciary duties, it can¹t avoid a negative finding on that because ICANN fails to participate and defend itself. Regards, Sam On 9/27/15, 2:14 AM, "accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Malcolm Hutty" <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 2015-09-27 01:55, Stephen Deerhake wrote: Thus it's my contention that if the WG continues down this path, this project will fail. Maybe that's what some members of the WG want; I don't knowŠ If backed into a corner, so be it. I challenge your implication that a willingness to contemplate continuation of the status quo constitutes bad faith. There are many of us who approached this CCWG in good faith (and invested huge amounts of time and effort in trying to make it work) but who still have "red lines" - minimum requirements without which they would prefer that transition did not proceed. I count myself within that class. My own red line is that an aggrieved registrant who stands to lose their domain as a result of ICANN policy must have the right to challenge the legitimacy of that policy on the grounds that it is outside ICANN's scope, and that that challenge must be before a fair and objective independent panel with the power to quash the policy. We have made considerable progress toward this goal. So far, the panel, its independence, its decision-making standard and (I think) its power, have all been accepted. But as for the *right* to challenge, while the Board says it is willing to accept this in principle, it rejects the SMM, which is the only mechanism we have found for making the right to seek redress enforceable. By that I mean, the SMM is the only mechanism which could correct and force ICANN to enter into the IRP if, in a particular case, it refused to do so. The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM. This is a problem for me. I have no difficulty or embarrassment about saying that I would prefer that the entire transition failed than that it proceed without a satisfactory resolution of this point. But my own red line is really very modest. Some may have more ambitious demands, and I don't think that that would be illegitimate. Consider how we began this whole process. The NTIA has exercised a historic stewardship of the DNS and a de facto oversight of ICANN. NTIA periodically imposes on ICANN a new contract, one that ICANN simply cannot reject. As a consequence, NTIA has the effective and enforceable powers to initiate and enforce change in ICANN. As a result of this special relationship NTIA was in a position to, and did in fact, effect change within ICANN that nobody else would have been capable of bringing about. When we began this process, NTIA declared that it wanted a proposal to transition its historic role to the global multistakeholder community. If some people interpreted this as meaning that the global multistakeholder community must gain an effective and enforceable mechanism to bring about change within ICANN, over the heads of a Board that resisted that change, I wouldn't think that would be an unreasonable reading of what was offered. Nor do I think it would be unreasonable for someone to conclude that the CCWG's proposal - much less the Board's counter-proposal - falls significantly short of that ambition. So if someone concluded that it was better to remain with the current position where at least /someone/ had the power to force ICANN to change (especially since the NTIA's record in this regard is known and benign) then I don't think it would be fair to cast a person with such a view as unreasonable or as some sort of saboteur. But as I say, I am not myself demanding the full accountability of ICANN and the complete subordination of its institutional bureaucracy to the global multistakeholder community. If I can be certain that it can be contained within its defined scope, I will be satisfied. Sadly, as of today, I am not being offered even that much. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nNzYTCWKUQRQefJhWxKVzwg5eMMrrSfqoiAT2i7i0Ms&s=gX-PvRuhgnD7Ebgu-_sVjBSTZdqulpaC463oso1a-30&e=> London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nNzYTCWKUQRQefJhWxKVzwg5eMMrrSfqoiAT2i7i0Ms&s=w4aIXbcy5IQZVETjsPgt8E54gbesYPEdjhbJi6nPqKo&e=> _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nNzYTCWKUQRQefJhWxKVzwg5eMMrrSfqoiAT2i7i0Ms&s=w4aIXbcy5IQZVETjsPgt8E54gbesYPEdjhbJi6nPqKo&e=> _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nNzYTCWKUQRQefJhWxKVzwg5eMMrrSfqoiAT2i7i0Ms&s=w4aIXbcy5IQZVETjsPgt8E54gbesYPEdjhbJi6nPqKo&e=> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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I don't expect that any significant research is required. Sent with Good (www.good.com) ________________________________ From: Mathieu Weill Sent: Monday, September 28, 2015 10:23:03 AM To: Gregory, Holly Cc: Seun Ojedeji; Chris Disspain; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Summary of current Board sentiment Dear Holly, As this is simply a matter of confirmation, please consider the request certified. Let us know if research is required please. Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 28 sept. 2015 à 00:35, Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> a écrit : Once the question is certified to us, we are happy to reply. HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Sunday, September 27, 2015 4:39 PM To: Chris Disspain Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Summary of current Board sentiment +1 this is helpful. Thanks Malcolm for rather focusing on how to achieve our collective goals and thanks Chris for directing the query accordingly. Will be good to read ccwg legal view on the point raised. I hope the Co-Chairs "as per process" would direct this to the legal team. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 27 Sep 2015 12:12, "Chris Disspain" <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below. Could I please ask Holly and Rosemary to confirm that Malcolm is correct in his understanding of the legal advice? Cheers, Chris On 28 Sep 2015, at 05:06 , Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: Thank you Samantha, that is very helpful. I think it shows a route forward, if not necessarily an easy one. The problem is this: as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below. For what it's worth (very little I admit), neither do I know of any basis for a court to uphold a default judgment rendered by an arbitration panel against a party that had not agreed to enter arbitration. But your assertion is still helpful in narrowing the issue. If it is indeed shown that you are correct, and that it is clear that the Californian courts would indeed uphold an arbitration ruling notwithstanding that ICANN had refused to enter arbitration, then I will seriously reexamine my position (by which I mean, I do not now know any reason why under such circumstances I would not be prepared to accept MEM, or other proposals of such like). I do not make any great claims for myself, but if anyone should share my view or choose to be guided by my analysis, this could be a step forward. I must, however, ask you: can you reciprocate? If it is shown that our advisors are right and you are not, and that accordingly the courts would not enforce a "default judgment" against ICANN by an arbitration panel unless it had previously agreed to enter arbitration through the IRP, will you similarly accept that only a membership based solution is acceptable? Perhaps this is an unfair question: you are an employee and may not be authorised to make such a concession. I am an employee too, with limited authority, so I sympathise. In which case, please consider the same question directed at any Board members who care to take it up. Malcolm. On 27 Sep 2015, at 20:27, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Malcolm, I see your point below that "The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM.² I¹m resending my response from 24 September on this same issue - In the unlikely event that ICANN refuses to participate in the MEM, the MEM arbitration would still take place and ICANN would suffer the equivalent of a default judgment against it for not participating in the MEM, and that declaration would be binding and enforceable. If the Board believes that an action should be insulated because of its fiduciary duties, it can¹t avoid a negative finding on that because ICANN fails to participate and defend itself. Regards, Sam On 9/27/15, 2:14 AM, "accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Malcolm Hutty" <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 2015-09-27 01:55, Stephen Deerhake wrote: Thus it's my contention that if the WG continues down this path, this project will fail. Maybe that's what some members of the WG want; I don't knowŠ If backed into a corner, so be it. I challenge your implication that a willingness to contemplate continuation of the status quo constitutes bad faith. There are many of us who approached this CCWG in good faith (and invested huge amounts of time and effort in trying to make it work) but who still have "red lines" - minimum requirements without which they would prefer that transition did not proceed. I count myself within that class. My own red line is that an aggrieved registrant who stands to lose their domain as a result of ICANN policy must have the right to challenge the legitimacy of that policy on the grounds that it is outside ICANN's scope, and that that challenge must be before a fair and objective independent panel with the power to quash the policy. We have made considerable progress toward this goal. So far, the panel, its independence, its decision-making standard and (I think) its power, have all been accepted. But as for the *right* to challenge, while the Board says it is willing to accept this in principle, it rejects the SMM, which is the only mechanism we have found for making the right to seek redress enforceable. By that I mean, the SMM is the only mechanism which could correct and force ICANN to enter into the IRP if, in a particular case, it refused to do so. The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM. This is a problem for me. I have no difficulty or embarrassment about saying that I would prefer that the entire transition failed than that it proceed without a satisfactory resolution of this point. But my own red line is really very modest. Some may have more ambitious demands, and I don't think that that would be illegitimate. Consider how we began this whole process. The NTIA has exercised a historic stewardship of the DNS and a de facto oversight of ICANN. NTIA periodically imposes on ICANN a new contract, one that ICANN simply cannot reject. As a consequence, NTIA has the effective and enforceable powers to initiate and enforce change in ICANN. As a result of this special relationship NTIA was in a position to, and did in fact, effect change within ICANN that nobody else would have been capable of bringing about. When we began this process, NTIA declared that it wanted a proposal to transition its historic role to the global multistakeholder community. If some people interpreted this as meaning that the global multistakeholder community must gain an effective and enforceable mechanism to bring about change within ICANN, over the heads of a Board that resisted that change, I wouldn't think that would be an unreasonable reading of what was offered. Nor do I think it would be unreasonable for someone to conclude that the CCWG's proposal - much less the Board's counter-proposal - falls significantly short of that ambition. So if someone concluded that it was better to remain with the current position where at least /someone/ had the power to force ICANN to change (especially since the NTIA's record in this regard is known and benign) then I don't think it would be fair to cast a person with such a view as unreasonable or as some sort of saboteur. But as I say, I am not myself demanding the full accountability of ICANN and the complete subordination of its institutional bureaucracy to the global multistakeholder community. If I can be certain that it can be contained within its defined scope, I will be satisfied. Sadly, as of today, I am not being offered even that much. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nNzYTCWKUQRQefJhWxKVzwg5eMMrrSfqoiAT2i7i0Ms&s=gX-PvRuhgnD7Ebgu-_sVjBSTZdqulpaC463oso1a-30&e=> London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nNzYTCWKUQRQefJhWxKVzwg5eMMrrSfqoiAT2i7i0Ms&s=w4aIXbcy5IQZVETjsPgt8E54gbesYPEdjhbJi6nPqKo&e=> _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nNzYTCWKUQRQefJhWxKVzwg5eMMrrSfqoiAT2i7i0Ms&s=w4aIXbcy5IQZVETjsPgt8E54gbesYPEdjhbJi6nPqKo&e=> _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nNzYTCWKUQRQefJhWxKVzwg5eMMrrSfqoiAT2i7i0Ms&s=w4aIXbcy5IQZVETjsPgt8E54gbesYPEdjhbJi6nPqKo&e=> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Kavouss, I personally attach a very hight level of support to the Board,s comments which stem from 17 years of valuable experience. While I support and appreciate public comments but we should give special attention to the valuable comments from the Board and should not put those comments in the sane basket of any other comment received from individual . I respectfully disagree with this sentiment. I give no greater weight to the comments of a member of the Board than I do to a comment from the least privileged amongst us. I give power to the idea, not to the person or the organisation making it. Ed

This would be helpful Thank you Chirs *Carlos Raúl Gutiérrez* +506 8837 7176 Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Sun, Sep 27, 2015 at 1:11 PM, Chris Disspain <ceo@auda.org.au> wrote:

as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below.

Could I please ask Holly and Rosemary to confirm that Malcolm is correct in his understanding of the legal advice?

Cheers,

Chris

On 28 Sep 2015, at 05:06 , Malcolm Hutty <malcolm@linx.net> wrote:

Thank you Samantha, that is very helpful. I think it shows a route forward, if not necessarily an easy one.

The problem is this: as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below. For what it's worth (very little I admit), neither do I know of any basis for a court to uphold a default judgment rendered by an arbitration panel against a party that had not agreed to enter arbitration.

But your assertion is still helpful in narrowing the issue. If it is indeed shown that you are correct, and that it is clear that the Californian courts would indeed uphold an arbitration ruling notwithstanding that ICANN had refused to enter arbitration, then I will seriously reexamine my position (by which I mean, I do not now know any reason why under such circumstances I would not be prepared to accept MEM, or other proposals of such like). I do not make any great claims for myself, but if anyone should share my view or choose to be guided by my analysis, this could be a step forward.

I must, however, ask you: can you reciprocate? If it is shown that our advisors are right and you are not, and that accordingly the courts would not enforce a "default judgment" against ICANN by an arbitration panel unless it had previously agreed to enter arbitration through the IRP, will you similarly accept that only a membership based solution is acceptable?

Perhaps this is an unfair question: you are an employee and may not be authorised to make such a concession. I am an employee too, with limited authority, so I sympathise. In which case, please consider the same question directed at any Board members who care to take it up.

Malcolm.

On 27 Sep 2015, at 20:27, Samantha Eisner <Samantha.Eisner@icann.org> wrote:

Hi Malcolm, I see your point below that "The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM.²

I¹m resending my response from 24 September on this same issue -

In the unlikely event that ICANN refuses to participate in the MEM, the MEM arbitration would still take place and ICANN would suffer the equivalent of a default judgment against it for not participating in the MEM, and that declaration would be binding and enforceable. If the Board believes that an action should be insulated because of its fiduciary duties, it can¹t avoid a negative finding on that because ICANN fails to participate and defend itself.

Regards,

Sam

On 9/27/15, 2:14 AM, "accountability-cross-community-bounces@icann.org on behalf of Malcolm Hutty" <accountability-cross-community-bounces@icann.org on behalf of malcolm@linx.net> wrote:

On 2015-09-27 01:55, Stephen Deerhake wrote:

Thus it's my contention that if the WG continues down this path, this project will fail. Maybe that's what some members of the WG want; I don't knowŠ

If backed into a corner, so be it. I challenge your implication that a willingness to contemplate continuation of the status quo constitutes bad faith.

There are many of us who approached this CCWG in good faith (and invested huge amounts of time and effort in trying to make it work) but who still have "red lines" - minimum requirements without which they would prefer that transition did not proceed.

I count myself within that class. My own red line is that an aggrieved registrant who stands to lose their domain as a result of ICANN policy must have the right to challenge the legitimacy of that policy on the grounds that it is outside ICANN's scope, and that that challenge must be before a fair and objective independent panel with the power to quash the policy. We have made considerable progress toward this goal. So far, the panel, its independence, its decision-making standard and (I think) its power, have all been accepted. But as for the *right* to challenge, while the Board says it is willing to accept this in principle, it rejects the SMM, which is the only mechanism we have found for making the right to seek redress enforceable. By that I mean, the SMM is the only mechanism which could correct and force ICANN to enter into the IRP if, in a particular case, it refused to do so. The MEM - another layer of arbitration - would not give anyone the capability to force ICANN to enter the IRP, because the Board could also refuse to accept arbitration by the MEM.

This is a problem for me. I have no difficulty or embarrassment about saying that I would prefer that the entire transition failed than that it proceed without a satisfactory resolution of this point.

But my own red line is really very modest. Some may have more ambitious demands, and I don't think that that would be illegitimate. Consider how we began this whole process.

The NTIA has exercised a historic stewardship of the DNS and a de facto oversight of ICANN. NTIA periodically imposes on ICANN a new contract, one that ICANN simply cannot reject. As a consequence, NTIA has the effective and enforceable powers to initiate and enforce change in ICANN. As a result of this special relationship NTIA was in a position to, and did in fact, effect change within ICANN that nobody else would have been capable of bringing about.

When we began this process, NTIA declared that it wanted a proposal to transition its historic role to the global multistakeholder community. If some people interpreted this as meaning that the global multistakeholder community must gain an effective and enforceable mechanism to bring about change within ICANN, over the heads of a Board that resisted that change, I wouldn't think that would be an unreasonable reading of what was offered. Nor do I think it would be unreasonable for someone to conclude that the CCWG's proposal - much less the Board's counter-proposal - falls significantly short of that ambition. So if someone concluded that it was better to remain with the current position where at least /someone/ had the power to force ICANN to change (especially since the NTIA's record in this regard is known and benign) then I don't think it would be fair to cast a person with such a view as unreasonable or as some sort of saboteur.

But as I say, I am not myself demanding the full accountability of ICANN and the complete subordination of its institutional bureaucracy to the global multistakeholder community. If I can be certain that it can be contained within its defined scope, I will be satisfied. Sadly, as of today, I am not being offered even that much.

Kind Regards,

Malcolm.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

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Hello Eberhard,

...

can you please "share your understanding" of what you mean below in the form of an executive summary?

OK - I will try. - the Board was getting some feedback that it wasn't aligned with the detailed comments that it submitted - so we wanted to confirm that yes the comments we submitted represent our views on the draft proposal, and our suggestions for improvement. - the Board wanted to be clear that we want to work with the CCWG on a common proposal that we can all support. As Keith noted, this means all including the Board will need to compromise, without compromising our joint goals. Regards, Bruce Tonkin