Re: [ALAC] [IANA-issues] CLARIFICATION: Questions on Accountability Proposals
Well, you will recall that my preference is not to have the ability to take action except in the case of a Board refusing to step down. But if fact, the need to indemnify just decreases the chance that ICANN would defy the comunity. At 31/05/2015 01:24 PM, Seun Ojedeji wrote:
Hi Alan, all
Thinking aloud here: By all these legal stuff, ain't we creating an avenue for coup/gaming in near future? Why do we want to transition into a phase where SO/AC would be so exposed and where ICANN would become so distracted with bearing legal cost that may arise as a result of one external organisation charging an SO/AC legally.
I am yet to be convinced of the need permit such legal enforceability by the community as i think the possible disadvantages would most likely outweigh its advantage. I think the legal suing route should always be between ICANN (as an organisation) and its client (contracted parties).
While i agree with Olivier that this may never happen, i don't think such option should even be possible. As we may be surprised that it would test the creativity of some members of the community.
Regards
On Sun, May 31, 2015 at 5:33 PM, Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca> wrote: I thought that this was clear from the teleconferences, but I guess not.
The concept of having legal status to allow, in the extreme, court action, also brings the possibility of action against legal counterpart of the AC/SO. ANY such provisions REQUIRE that ICANN indemnify and cover all costs associated with these rights. If we cannot get that written into the Bylaws and binding, all such "enforceability" rights are not a possibility.
And to be clear, yes, ICANN would have to indemnify us (individuals and AC/SOs) for all costs involved in suing ICANN (that is a common clause in some contracts).
Alan
At 30/05/2015 10:04 PM, Alan Greenberg wrote: The ALAC and IANA-Issues meetings last week brought a lot of clarity to the position of At-Large with respect the CCWG-Accountability Proposals.
One area where participants seemed to hold varying opinions was to what extent the new accountability measures need to be "enforceable".
For a power given to the community to be enforceable, the community or its representatives ultimately need to be able to go to court if ICANN (ie the ICANN Board) does not honor the communities directives. That doesn't mean that anyone WILL sue, but the right and therefore the possibility is there.
Currently, we have no such right. Although there have been numerous times where parts of the community (at times large parts) have been dissatisfied with Board action, it is not clear that IF we had the planned powers at that time, would we have used them.
In a typical case, although some parts of the community may be dissatisfied, others were delighted with the decision. In a case such as the creation of "digital archery" to address the order in which new gTLD applications would be processed, pretty much everyone was dissatisfied, but it is far from clear it was an issue that warranted extreme action.
If there is no formal enforceability, then we would rely on good faith and trust to address points of contention. In the case of failure, most parties seem to agree that removal of the Board (or selected parts of it) must be fully enforceable.
The current CCWG proposal calls for COMPLETE enforceability. This implies certain structural changes.
Here are several questions. This message is also being sent to the IANA Issues list. Only one reply is needed. Please reply by Monday if at all possible.
1. Do you believe that failing anything else, we must have the ability to remove parts of or all of the Board?
2. With the exception of Board member removal, do we need legal enforceability of can we rely on good faith (and Board member removal if you supported that).
3. If the final CCWG proposal calls for full legal enforceability, is that sufficient reason for the ALAC to not ratify it?
Alan
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-- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: <http://www.fuoye.edu.ng>http://www.fuoye.edu.ng Mobile: +2348035233535 alt email:<http://goog_1872880453> <mailto:seun.ojedeji@fuoye.edu.ng>seun.ojedeji@fuoye.edu.ng
The key to understanding is humility - my view !
On 31/05/2015 19:27, Alan Greenberg wrote:
Well, you will recall that my preference is not to have the ability to take action except in the case of a Board refusing to step down.
I absolutely agree with you.
But if fact, the need to indemnify just decreases the chance that ICANN would defy the comunity.
Of course, that depends on what is "The Community" - which is the reason why I agree with your point above. I would be very concerned if Contracted Parties could use the "Community" to sue ICANN if ICANN was to impose something on them - a right they currently have in the course of renegotiating contracts. I see danger in building a potential infernal machine that could ultimately see ICANN self-destroy. This could be used by clever lawyers to exert pressure. Kind regards, Olivier
At 31/05/2015 04:08 PM, Olivier MJ Crepin-Leblond wrote:
On 31/05/2015 19:27, Alan Greenberg wrote:
Well, you will recall that my preference is not to have the ability to take action except in the case of a Board refusing to step down.
I absolutely agree with you.
But if fact, the need to indemnify just decreases the chance that ICANN would defy the comunity.
Of course, that depends on what is "The Community" - which is the reason why I agree with your point above. I would be very concerned if Contracted Parties could use the "Community" to sue ICANN if ICANN was to impose something on them - a right they currently have in the course of renegotiating contracts. I see danger in building a potential infernal machine that could ultimately see ICANN self-destroy. This could be used by clever lawyers to exert pressure.
Good point. But I think that limiting the recipients to be the AC/SO or those who represent them, we are ok.
Kind regards,
Olivier
participants (2)
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Alan Greenberg -
Olivier MJ Crepin-Leblond