[CCWG-ACCT] [WP1] Comments and questions on legal docs

Wed Apr 15 07:41:25 UTC 2015

Sam, I would just like to say thank you for this contribution. I think it
is both thoughtful and helpful.

I hope that this can be raised with the legal team and fed to their work.
What I do not know is how much of this detail we will need to resolve in
the prep for the first comment period report. We will be talking about how
to deal with the slightly vexed question of how to deal with that at our
next call, coming up in about thirteen hours.

best,
Jordan

On 15 April 2015 at 13:58, Samantha Eisner <Samantha.Eisner at icann.org>
wrote:

>  I have a group of questions, and share this with WP1 as well as the
> broader CCWG as well for consideration.  Some of them are legal issues,
> some of them are more accountability related issues for CCWG consideration
> now that we have some guidance from the lawyers.
>
>  To help illustrate my concerns, I've followed Robin's Chart format and
> created two of my own, (though my excel powers clearly are nowhere near
> hers!).  The first chart is based off of the slides that were presented on
> today's CCWG call, in particular the membership and the delegate slides.  I
> have removed reference to the TLG as it no longer has a role in appointing
> Board members and is itself a collection of external groups.  I have also
> included the ALAC, which was not fully referenced on those slides as it is
> the At-Large Community that is the body that appoints to the Board, not the
> ALAC, therefore I think we need to look at how the ALAC is considered
> within this process.
>
>  Using the same 6 powers that Robin highlighted in her chart, I then took
> those powers and identified how I understand the powers to be exercised by
> the different Sos and Acs when relying on a membership or designator model,
> to get a better sense of where the groups that are formally identified as
> members or designators could act, which then raises the questions of what
> happens to those groups that are not identified as members or designators.
> This seems to me to be a key area where we need to focus - how does the
> move to a different structure actually impact the multistakeholder actors
> within ICANN?
>
>  Some of the key questions that I propose we need to consider are:
>
>    1. If there is a move to member organization, what does it really mean
>    in terms of exercising of community powers if some Sos/Acs are members and
>    some aren't?
>    2. If there are members/non-members how much of the relationships
>    among the Sos and Acs in exercising community powers would be based in
>    contract?  Would non-members need to enter into contracts too, or would
>    their powers just be expressed within the Bylaws or Articles of
>    incorporation?
>    3. If contracts are required, wouldn't that also require the formation
>    of some sort of legal entity (unincorporated association or otherwise) to
>    enter into the agreements, even among non-members?  Who are the parties to
>    these contracts?
>    4. Would each of the groups that are members have be subject to
>    California law once they form as an unincorporated association (or other
>    legal entity)?  Is this viable across the ICANN community?
>    5. How is a group such as the At-Large Community to be recognized as
>    an unincorporated association?  If the GAC wanted to be a member, is that
>    something that is even possible for it to do?  Or the ccNSO, keeping in
>    mind the concerns that Chris Disspain raised on our call?  Or any other
>    group?  Is this feasible?
>    6. What are the mechanisms that the members will use to be accountable
>    to each other, particularly when there is no fiduciary duty and the
>    expectation of acting in personal interest?
>    7. Particularly if there are members/non-members, what accountability
>    mechanisms will be in place to make sure that the members don't act to the
>    disadvantage of non-members?  (Examples: blocking a budget that includes
>    funds for the performance of the IANA functions in service to the protocol
>    parameters community, assuming the IETF is not a member; blocking a board
>    action that is intended to enact a non-member advisory committee's advice)
>    8. Where does the NomCom belong?  Is it appropriate for a group that
>    changes composition on a yearly basis to be a member?  Is it a collective
>    association of all entities that currently appoint delegates to the
>    NomCom?  Does that give some members more say that others if there are
>    members/non-members to ICANN (Ex: GNSO appoints multiple delegates through
>    its Sgs and Constituencies - would those groups get to impact both NomCom
>    exercise of membership as well as GNSO exercise of membership?)
>    9. To what extent does the designator model rely on the formation of
>    associations and contracts to achieve the stated reforms?
>
>
>
>  The second sheet (membership rights) are the enumerated powers of
> members that were set forth in Sidley's 12 April memo to the CCWG.
> Understanding that each of these can be applicable to members, how are they
> applicable to non-members?
>
>  There are likely additional questions, but these are some of the
> hallmark ones that stand out to me if we look at how structural changes
> could actually be applied to ICANN, and not just look at it from the pure
> legal view of structures that would empower the anticipated solutions.
>
>  Once we understand these a bit more, then we can turn to the more
> fundamental questions of whether the positives and negatives of what can be
> achieved through the proposed structural changes make those changes the
> best ways to achieve the reforms.  That can include issues of practicality
> of implementation, time for implementation, the ability for less complex
> measures to achieve many goals (such as developing robust Bylaws revisions)
> while identifying that if more major changes such as the systemic move to
> membership is seen as appropriate after robust community debate, that the
> Board would be obligated to take that recommendation on (similar to how WS2
> will be treated).
>
>  Thanks for your consideration of these issues.
>
>  Best,
>
>  Sam
>
>
>
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-- 
Jordan Carter

Chief Executive
*InternetNZ*

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