[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #22 14 April

Brenda Brewer brenda.brewer at icann.org
Tue Apr 14 18:41:32 UTC 2015

Dear all, 


The notes, recordings and transcripts for the CCWG ACCT Session #22 call on 14 April will be
available here:  https://community.icann.org/pages/viewpage.action?pageId=52895728



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




1. Please remember to complete your SoI - reach out to staff if any assistance is needed.



2. We will focus on easiest to explain, understand and implement

Have analyzed mechanisms and powers - California law has powerful tools 9



Under CA law and under contract law there are powerful tools to achieve

the mechanisms the CCWG is seeking.


Clearest path is to org an membership body made up of the same groups as

currently elect directors.


Under a designator model, also ached much of this.  But membership also

gives powers to review and approve certain board decisions.


Under corporate law the community has rights and these are based around

the concept of a corporate purpose.  The purpose is tested in the articles

and further defined in the bylaws.  And the community will have the power

to hold the Broad to that corporate purpose.  Including the word to remove

the board.   Power to amend bylaws.  Also the approval and rejection right

is also powerful (what CCWG has been calling veto rights), and these are

the powers that membership gives over the designator approach


We believe ICANN as a member org is the path to the powers the CCWG seeks.


The duty of care to the organization.  Directors should apply their own

judgment to what is best for the organization.  They are also required to

bring with them knowledge of the community that elected them.


Member structure:  


The SO/AC who elect director would become members.  The directors retain

fiduciary responsibilities, but the community has powers to greater direct

the board.  


Members: primary role to select and remove the board.  Classify the

membership.  Each class would choose internally who it wants to put on

the Board, these rights are heavily protected. There are some downsides in

that the protect members have a right to sue and can be disruptive.

Suggest in this case that the members be a incorporated entity.  Take the

SO and AC and form as an unincorporated association.  And this is a low

standard give the already exciting organization of the SO/AC.  The current

internal body would become and separate legal entity.


The stature allows for reserve powers, and the powers CCWG seeking can

largely be delivered, so long as the Board's powers overly reduced.


Question about the NomCom role.  Could be a member, or be eliminated and

have its work given to other new


One class of members to vote on another class of members' directed.  This

could be worked around through contracts which would allow the classes of

members to work together.


Members can unilaterally amend bylaws.  The Board can also amend bylaws,

or the right take-away.  Members can veto changes.  Can require actions to

be approved.  Members have the right to sue, if assets were not used for

the purpose for which the corporation is organized (the corporate purpose)


Member advantage:  key is to amend the bylaws, to approve or veto board

actions and the standing to sue.  However designators still viable.


Notion of a two-tier board structure.  It is not the same as the European

supervisory board.  A larger community board and executive board.  The

community board has oversight over the executive and designates authority

to the executive board.  The large community board has power to interfere

and overrule the executive board.


Need to change the bylaws to classify voting rights.  Procedure to allow

the community to amend the bylaws and adding the community provisions such

as reserve powers and independent review process.  Outside the bylaws

provisions need to provisions to allow removal rights.  Believe can be

done without radically changing the familiar structures of SO/AC


Desired powers.  Based on WP1.  Which work for members and which for

designators.  Both can remove individual directors.  Both can approve or

change the bylaws and protect fundamental bylaws.


To block board actions that conflict with the bylaws and mission:  members

can do this, much harder for the designators.


The powers reserved to the community under a member organized ICANN are

stronger than under designator organized


Block strategic plan or budget, members have the powers, for designators

unlikely or problematic


Principles of contract law.


Community veto power of certain board decisions.  To the extent that it

applies to specific board decisions, the member approach will have more

influence.  Rights can be reserved for members, but not for designators.


Q.  creating legal entities of the SO/AC can this open them up for legal

action.  If the GNSO makes policy recommendations, could it later be sued

for those recommendations.  Concern when he ccNSO was created that joining

a member organization would reduce the ccTLD managers individual rights.


Can we get what we want, without all the restructure.  Can the powers be

given through the powers in the bylaws?


A. The trade off between the member and designator structure is how much

power.  Can have all of the power, except the veto power over certain

board decisions under the designator structure. Are they needed if you

have other strong powers, such as removing the board or control over



Concept of legal viability.  In the ICANN bylaws provides that groups has

the right to name people to the board.  What is legally viable, the lawyer

answer may be to provide a mechanism to force the board to do what you

want it to do.  Many of the things wanted can be put in the bylaws, but if

the board ignored it, then the question is there any way to change that.


Q.  1.  is it feasible to have an independent standing panel that would be

bind to the board, i.e. the independent review panel


2. can we call the board to action when they are not taking action


A. under the member model, a lot of flexibility in how to give veto and

approval rights.  Need greater level of research to know.

A. the concept f being able to force the board to do something, under both

there is an option to remove an individual or entire board.  But to force

the board to do something, that's where the members structure is much

stronger.  Forcing the board to do things, by amending the bylaws, or by

the members taking on an action and doing it are possible.


Yes, the NomCom can be constituted as a member, and perform its current



The only way for one class members to remove the directors appointed by

another class of member would be through some contractual relationship and

removal of the entire board.


SO/AC are created by the ICANN bylaws, and the bylaws controls what they

can and cannot do.  Is this retained as separate bodies?


Current vision for this, the unincorporated association.  Brief articles

of association, would cross reference out of the articles to refer to

existing ICANN documents, no need for governing documents as they already

exist.  So the SO.AC retain their current persona.


The designator model can be made to work.  But the clarity around roles,

is simpler under the member model.  Designator path is considered more



How does a govt representative fit into this structure.

Govt currently has the GAC and the selects non-voting observer to the



Can a govt representative be considered as a member?   They way seen under

the member or designator structure, did not see the GAC having a voting

members.  NomCom would continue to function and to provide some diversity

etc to the board. 


Spring board action in cases of inaction.  A mechanism to cause the board

to take action.  There coercive power exists in the selection and removal

of directors.  

Can formalize the process to call for a meeting of community

representatives and the board to express concerns.  Forcing the board to

act is hard because they are fiduciary and they have to have the right to

take decisions.  


Which can be done under the current arrangements?  Slide 20.  Currently,

it closely represents a designator model.  Desired powers:  SO/AC if

considered designators will have approval rights over certain articles or

bylaws, and can recall the whole board, cannot block board action such as

the adoption of budget or strategic plan.


1. Note: TLG no longer appoints to ICANN board

2.  Nuance. Bylaws can be put in place that allows the community, using

whatever mechanisms it wishes, to veto the budget, strategic plan, etc.

The Board could ignore that veto and if they did, the next power could be

to remove the board.

3.  Problems with membership based organization and current structure of

the NomCom and particularly GAC advice and how it is treated under the



Need to also address WP2 issues, and reviewing the IRP and how this can

fit in the recommendations will be the subject of legal sub-team call

(Wednesday, 15 April. 15:00-17:00 UTC)


Yes we can have all the options, but some trade-off for a solution that

might be easier to implement.  The requirements were not unrealistic.


3. CCWG Workplan and timeline


Not wishing to lose momentum, but recognizing the concerns about the high

workload and heavy document load.  The report, the first administrative

parts of the report document is largely complete.   See solid progress

from WP1 and WP2.  And feel the group has achieved a great deal. To pull

the parts together to a cohesive document


Eberhard Lisse:  disagree with the approach being taken, we need more time

to discuss.


Short term work time.  Our charter in the context of the transition, and

deliver in a time frame consistent with the CWG as we are supporting some

of their proposals.  We expect it hear more from CWG on their requirements

after their 2 day intense work session of Monday/Tuesday this week. And we

need our proposal to be available for ICANN #53 and consideration by the

SO/AC,  Our Istanbul target was for public comment launch on April 21. We

want members to be able to comment on the proposals. We need assurance on

legal feasibility, and we have good progress and issues for legal group to



Way forward.  1.  focus, and suggestions on list we might do that on the

CWG needs, as they respond after their intense work days.

Adjust our approach: 3 step approach:  1. this week focus on WP so they

complete proposals by the end of the week.  2. To turn around a 20-25 page

draft report over the weekend and 3 day freeze Monday-Wednesday so the

group can consider.  3. a 2 day intense work period based on the CWG

model, Thursday/ Friday next week


Revised call schedule.  Cancel the CCWG calls of Thursday Apr 16, Friday

Apr 17 (set Friday as target for the draft report to be circulated) and

cancel the additional meetings of Monday Apr 20 and Tuesday 21st.  Keep

the regular Tuesday Apr 21 CCWG 19:00 UTC. Consider CWG comments and

follow-up on legal advice).  Intensive April 23/24 work period as inspired

by the CWG process of meetings. And finalize the proposals - we are

extending the time line.


Cover the CWG requirements as a priority.


No face-to-face May meeting, but June 19 in Buenos Aires.


Request the spread the meeting times for the intense meetings across the

timezones (Agreed, will be amended)


Outcome of WP1. Aware WP1 may present options, and public comment can be

used to provide feedback on issues.  Legal advice affecting WP2



Agreement to cancel the schedule and introduce the new meeting times

(revised for timezones)


Discussion of stress test 18 to next meeting.


Summary report, and plan for intense work days next week.




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