[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #18 31 March

[Brenda Brewer]

Dear all, 

 

The notes, recordings and transcripts for the CCWG ACCT Session #18 call on 31 March will be
available here: https://community.icann.org/pages/viewpage.action?pageId=52893477


Action Items


*        ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join

*        ACTION ITEM: Raise with legal advisors (through legal sub team):

*        ACTION ITEM: Cochairs to specifically review notes on jurisdiction. 

*        ACTION ITEM: Review new version of mission statement later this week.

*        ACTION ITEM: WP2 to refine the proposals for reconsideration 

*        ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on
expected timeline and engage with relevant stakeholders

*        ACTION ITEM - CCWG to liaise with ICG Chairs

*        ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).

*        ACTION ITEM – Follow up on GAO matter on mailing list.


Notes


These high-level notes were prepared to help you navigate through content of the call and do not
substitute in any way the transcript 

1. León Sánchez reminded the group that outstanding Statements of Interest need to be filed.

Legal Subteam Methods & Updates

León Sánchez reported that Adler & Colvin - Sidley & Austin were on the call and would speak to
documents.  

Working methodologies were elaborated to coordinate work across firms/groups. León Sánchez noted
that the legal sub team remains open. A call for agreement was made: does the CCWG feel comfortable
with executives from legal subteam acting as liaison between firms and larger group? It was stressed
that the subset of Subteam would have obligation to collect any concerns or questions from larger
group and relay them to lawyers. It was commented that questions or concerns from group should be
raised on main CCWG-ACCT mailing list.       

Feedback:  

- All correspondence between lawyers and subgroup should be open and transparent. Agree that should
not be entire team but anyone should be able to join the list on read-only model

--> This is what is in place. Anyone who wishes to join the legal subteam can join the list on
read-only mode. Only executive Subteam members have posting rights.

- When posting concerns on main mailing-list, include header.

CONCLUSION: Working Methods are adopted - this issue is closed. 

Adler & Colvin

- Preliminary responses to 10 questions

Q1 relates to available legal mechanisms. We reviewed structures available to ICANN. Different
models of governance. Likely will end up using membership or designators.  

*         

*        Statutory members (entities or individuals) would elect directors and would be given bundle
of rights (positions of directors can vary); 

*        Self-perpetuating Board may not be something you will use; 

*        Designators:  appoint seats but no constellation of membership rights, more a matter of
drafting a structure;

*        Neither members nor designators have fiduciary duty unlike directors;

*        California law principles designates Board as ultimate authority; 

*        If members or designators are unhappy with Board performance, they can remove particular
director or Board;

*        Possible to have an executive committee (highly engaged) of a larger group. The larger
group would be entitled - in discharging duties -  to rely on smaller group i.e. the superBoard
option. Certain authorities would have to be exercised by full group. 

- This document will be reviewed in detail on Wednesday, 1 April during legal subteam call.

- Q2 Responsibilities and liabilities (fiduciary).

- Q3 Bottom-up process for decision-making (vs. top-down) - identifying issues we see in defining
bottom-up group (more empowered): what decisions it will have, who is in the group etc.

- Q4 Ways to prevent ICANN from experiencing mission drift e.g requirements for amending bylaws or
articles, designators to consent. 

- Q5 Fiduciary duties: what they are and who has them. How do you reconcile representing
constituency and acting in public interest?

- Q6 Board bound to accept IRP decisions e.g. contract or super board structure.

- Q7 Attorney General: unlikely unless assets are misused.

- Q8 How incorporate of AoC into bylaws.

- Q9 Interim mechanisms for caretaker Board: California law is not designed to accommodate that but
suggested mechanisms to take this on. A&C has reservations about spilling entire Board and advises
that group reconsider.

- Q10 Suggested steps to manage litigations risks.

ACTION ITEM: Legal subteam call details to be posted on mailing list for anyone to join

Sidley & Austin 

- There seems to be overlap between questions asked to A&C and S&A. 

- CCWG has a lot of tools to accomplish what it needs – how to use them needs to be determined.
Through expressed provisions in articles and bylaws, there are mechanisms you could use e.g. to
influence Board composition, limit ability from Board to limit changes to Bylaws, decisions around
budget etc. With respect to mission creep: bylaws and articles can be used to ensure purpose is met.


- A jurisdictional review of every place in world where you could reincorporate is premature and
would be an expensive endeavor. Any state in USA would work. California is a great place to focus
and cannot think of other state that would be automatically more advantageous. Switzerland has a
structure that include membership structure we can look into, if needed. 

- Antitrust: it is an issue you have to be mindful of but no significant concerns. 

WP2 Fundamental Bylaws

CONCLUSION: There would be provisions in bylaws where any change would require affirmative approval
with specific procedure requirements from community. Scope of bylaws would include: core mission of
ICANN, provision creating special bylaws, independent review panel and powers to change bylaws and
spill board. 

Jurisdiction

- Considering high sensitivity of topic, CoChairs not comfortable using first reading to include it
in the Istanbul statement.

- Call for agreement on Istanbul conclusions. We were not tasked to change jurisdictions of ICANN
but to enhance its accountability. Question is whether ICANN's accountability would be enhanced
depending on law applicable to its actions (legal input useful here). We concluded that 1) we would
not be making specific recommendations regarding jurisdiction in WS1 ; 2) we would consider it in
our scope as a topic when a requirement we set cannot be met or achieved within California
jurisdiction ; 3) we would rephrase question as a problem statement we would use within WS2. 

Feedback:

- A change of jurisdiction is not appropriate for WS1 but an expectation has been set by ICANN CEO
about importing the AoC obligation #8 (ICANN to remain in US jurisdiction). If bylaws ought to to be
amended to incorporate AoC obligations including #8, that needs to happen through CCWG work.

--> Anything that would incorporate AoC might be redundant with existing mechanisms (Bylaws,
articles). Legal group could look into this. 

- Is there something that we have identified that cannot be accomplished according to California
law?

- This is unnecessarily bringing negative political attention onto this work and transition. Is
anyone driving this issue for it to be a must-be? Where are those questions originating 

--> There were questions raised whether California law would constrain accountability. No reasons to
believe there is something that cannot be achieved outside California law. The question whether
ICANN can remain accountable to global community if remains in California is being brought up. 

--> Jurisdiction question are being assigned to lawyers and expecting answers shortly. Included
initial questions in legal scoping document as well as adding input from Jorge Cancio on whether
there are provisions on jurisdiction issues. 

--> Input from Pedro (Brazil), Arun

--> Jurisdiction is #1 question within French Business constituency and civil society.

-  Jurisdictional question is not necessarily centered around where the corporation is based, rather
legal questions governments may have for which they could not come to US court. They are looking for
method of raising legal issues that are not necessarily restricted to US courts but rather involving
international arbitration decision-making that is adequate at government level. T ere is no
appropriate mechanism for governments, international bodies to bring actions, questions, issue
before appropriate court of judgement. We are conflating these two issues. Moving ICANN is not a WS1
issue but addressing questions of appropriate mechanism for others to get jurisdictional response is
perhaps a question that needs to be tackled. 

--> Let's focus on facts and requirements instead of second-guessing political implications.   

--> Sovereignty concerns from governments when dealing with national courts 

--> Who are the people that can approach the US court? Question of which legal jurisdictions provide
for ideal balance has not been answered by Sidley & Austin  - answer needed. 

- It remains to be discussed within WS1 whether AoC article 8 will be incorporated into Bylaws

CONCLUSION: Discussion whether to incorporate article 8 from AoC still generates questions. Still in
agreement that our goal is to enhance ICANN's accountability and therefore the topic of jurisdiction
comes into scope when a requirement we have for accountability cannot be achieved within California
jurisdiction. Based on potential requirements that could not be achieved in WS1, the jurisdiction
issue might be pursued within WS2.

ACTION ITEM: Raise with legal advisors (through legal sub team):

*        What extra accountability would be brought to community if AoC article 8 was incorporated;

*        Balance of jurisdiction need to further explored. 

ACTION ITEM: Co-chairs to specifically review notes on jurisdiction.  

WP1

Community Mechanism

- WP1 meeting scheduled for Wednesday, 1 April 21:00 UTC – quick drafting will be done to tighten up
options that were discussed in Istanbul in regards to community mechanisms and see if can come to
understanding to debate with lawyers and CCWG. 

- CONCLUSION: there was agreement that voting would be involved and transparency would be needed.
Except for Board recall, votes would not be directed by SO/ACs. SO/ACs would be the basis for
determining who has vote. For all powers, there was a common ground that there is no specific cause
for a decision to be made. 

AoC reviews 

- Migrating 4 reviews into Bylaws with suggested improvements.

- Discussion point on ways to appoint members of Review Team (intention that community selects
representatives but comments about diversity balance). 

- CONCLUSION: Increased transparency features (access to documents, annual report on accountability
& transparency), potential for incorporating new reviews, when necessary

WP2 mission & Core Values 

-  A revised document was circulated to reflect input from Istanbul (substance and format). 

- We will circulate a revised draft which compares existing Bylaws with proposed changes and
incorporates input.  

ACTION ITEM: Review new version of mission statement later this week.

WP2 Independent Review

No further discussion on this item. 

CONCLUSION: IRP will be part of WS1. It is meant for ICANN to be accountable to all stakeholders
with provisions against frivolous claims. There were a number of items to look at how binding it
could be, subject to legal advice. 

W2 Reconsideration Process 

- Issue of standing: there was a thought to amend who has proper standing to file reconsideration
request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction.


- Standard of review: Amend standard to include reexamination of underline merits of
arguments/decisions and broaden type of decisions that can be reexamined; amend when Board
Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that
would extraordinary in nature; word changes (actual to notice etc); 

- Composition: Less reliance on legal department to guide Board Governance Committee on its
recommendations and recommend more Board members engagement early on in decision amend rules so that
Board governance committee cannot make final decisions without fuller Board briefing and discussion
of issues; call for more transparency in decision-making process. 

- Precedential value: Ability to challenge precedential value of previous decisions without
reopening old cases.  

- Accessibility: Extending time deadline for filing reconsideration request to 60 days from when
requestor learns decision. 

- Implementation: Follow-up process regarding implementation of the decision. 

- Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality;
final decisions should be issued sooner; criteria for urgent requests should be broadened.  

Feedback: 

What is the interaction between IRP and reconsideration request? Do we need to articulate how it
connects?

--> In order to get IRP, reconsideration request would need to be filed. We should spell this out,

--> It depends on what the substantive work of the independent review, what standards of evaluation
is (exhaustion of remedies). Clarification needed.  

- Are we broadening scope to go beyond (new information, facts) - would this tie into violation of
Bylaws standard or other standard?

--> Standards (put in Bylaws) would be standards against which reconsideration requests could be
measured to see if Bylaws were actually followed. Reconsideration request avenue would be available
to rectify situation. 

- Potential paradox between extending timeline for filing and timely issuance of decisions.

ACTION ITEM: WP2 to refine the proposals for reconsideration 

- Call for agreement on whether this is WS1

CONCLUSION: Reconsideration process is WS1.

ST-WP

- Informal meeting held in Istanbul to discuss #21 (delegation/redelegation).

- Minor edits were incorporated since Istanbul. Weekly stress test meetings will start again next
week. 

ACTION ITEM: Staff to circulate ST-WP call invites.

- Edits added to # 21, added new stress.

- Veto (supermajority) is distinct from IRP and reconsideration. 

- CWG raised stress testing comments - Cheryl and Avri served as liaison between CWG and CCWG on
this and will work with leads on RfP 4. CWG took on board some of our stress tests to test against
some of their proposals. 

Timeline

- Target date for finalizing recommendations is April 20.

- Need to provision for 2 public comment periods.

- ccNSO Council has confirmed that endorsement of proposals would require a face-to-face ccNSO
meeting so that all members could attend and discuss. 

- Berry Cobb walked the group through timeline update -
<https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_v0.9.6.5.pdf?version=1&
modificationDate=1427802208876&api=v2>
https://community.icann.org/download/attachments/50823981/CWG-CCWG_timeline_v0.9.6.5.pdf?version=1&m
odificationDate=1427802208876&api=v2 

Feedback:

- Public comments before SO/AC endorsements.

- Public comments could not amend outcome unless go back to SO/ACs.

- What is standard length of public comment period? When should be deadline to publish prior to
meeting? What if one of COs want changes to document delivered on October 1: how will we deal with
that and what will consequences be? 

-> Objective is to get input from SO/ACs at each public comment phase. 

-> 40 days by default but shortened subject to approval by 2 global leaders. Given aggressive
timeline, attempting 30 days subject to change. 

- Issuing new document between comment period and Buenos Aires is not a good idea. Suggestion: have
the public comment period in April/May analyzed to prepare for discussions in Buenos Aires and
prepare next draft using input received. Prepare a document in between is not practical. Depending
on nature of feedback, we will be able to prepare second draft with little effort or will need F2F
to re-engineer. How can CWG finalize its proposal without finalized accountability proposal? 

- Set aside face-to-Face meeting right before Buenos Aires to analyze comments received and finalize
after Buenos Aires.

- Need to be aware there is a significant difference between expectations set on group by some of
SO/ACs, Board etc. 

ACTION ITEM - Cochairs to send correspondence to CWG, Board, ICG and COs (transparency) on expected
timeline and engage with relevant stakeholders

- CoChairs will touch on expected timeline when coordinate with CWG Cochairs. 

- Considering organizing CCWG meeting on 19 June - will liaise with ICG (conflicts with meeting)

ACTION ITEM - CCWG to liaise with ICG Chairs 

Engagement 

ACTION ITEM - Engagement plan to be addressed on mailing list (in interest of time).

AOB

ACTION ITEM – Follow up on GAO matter on mailing list.

 

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