[CCWG-ACCT] Unintended Consequences of the CCWG proposal

Cherine Chalaby cherine.chalaby at icann.org
Tue Jul 7 06:45:50 UTC 2015

Dear Mathieu and the CCWG group,

In Buenos Aires, I attended most of the sessions on the CCWG proposal and made several comments.   I wish to share these comments in writing with you and the accountability-cross-community group as you prepare for the F2F meeting in Paris.    As I said in Buenos Aires, please do not take my comments as fierce criticism but more as constructive suggestions.  

Let me start by saying that as a Director of the Board, I believe in (a) appropriate empowerment of the community within the multi-stakeholder model,  (b) strengthening of the the bottom-up process, and (c) enhancing accountability without destabilising the security and stability of ICANN or introducing opportunities for capture.

In my personal capacity as a member of the community, I support the CWG proposal, but I have concerns that the CCWG draft proposal, discussed in Buenos Aires,  could lead to three unintended consequences that could seriously damage ICANN in the long run.  These unintended consequences apply to both the Membership model as well as the Designator (Hybrid) model.   

Unintended Consequence 1:   Weakening ICANN's Governance model
The CCWG has asserted that the “empowered community” will have control over the Board in the following areas: Strategic Plan, Operating Plan, Budget and Bylaws changes, fundamental or not.  As a consequence, there will be no decision that the Board can make in those core fiduciary responsibilities that cannot be rejected or stopped by the proposed new community-empowerment mechanism.

The CCWG draft proposal indicates that the Board would always have the ability to exercise its own judgment after the community-empowerment mechanism makes its decisions.  But the proposal also states that if the community-empowrment mechanism does not like what the Board has done, it can remove the Board individually or collectively.  Hence, the new community-empowerment mechanism in fact has the ultimate power to control the activities of ICANN.   While as a community member who believes in the bottom-up model, I support the principles behind this objective, I believe it is vitally important that these newly transferred powers are paired with the transfer of corresponding accountability.  The CCWG proposal in effect creates two bodies – one that is empowered (the community) and a separate one that is accountable (the Board).  This, in my view, breaches a fundamental principle of governance, weakens the overall structure of ICANN, and is not sustainable.  

Unintended Consequence 2:   Threatening ICANN's financial stability 
The CCWG draft proposal gives the community the right to reject the Board approved budget.  I have not yet seen proposed mechanisms to prevent the following from happening: 

(a) Budget paralysis, whereby members of the community will vote against each other rather than be accountable to each other.  For example, given budget limitations, what will stop members from voting against funding projects that do not facilitate their personal interest.   This could lead to a situation where the budget is never adopted or takes too long to adopt, therefore jeopardising ICANN’s ability to deliver on key commitments such as contractual compliance enforcement , including issues relating to enhanced consumer protections and enhanced IP and rights protections, and other initiatives important to the community.   This budget paralysis could also risk the stable and continued funding of the IANA functions.  That is why I suggested in Buenos Aires that a commitment to fund the IANA functions should be separated from this budgetary process and embodied in the ICANN Bylaws.

(b) Threat to the stability of the business environment in which many have invested and rely on ICANN’s ability to maintain,  as under the new proposal, members of the community will have the right to reject the budget, but not a single member of the community will be accountable for the budget bottom line. 

(c) Unfairness, where the financial needs of the minority will seldom be fulfilled  because final budget decisions will be made as a result of a majority voting by members of the community who do not have an obligation to act in the collective interest of all stakeholders.

it is worth noting that the current budget process is robust and transparent and ensures that none of the above consequences can occur. It also ensures community participation and it can always be improved. 

Unintended Consequence 3:  Dysfunctional Board

The CCWG draft proposal gives the community the right to remove an individual board member.   The CCWG proposed mechanism for implementing this right will in my view lead to the creation of two classes of board members.   Those that will act in sole the interest of the SO/AC that has elected them, and the others who will be free to act in the collective interest of all stakeholders.  The threat of removal without significant justification runs the risk of having individual Board members fear the loss of their seats if they do not adhere to the wishes of the constituency from which they come.  This could turn the Board into a representative body, or a parliament, i.e. a place where opposing interests clash and are reconciled, rather than the present situation in which all Board members are obligated to act as a body in the best interests of the overall organization.

Furthermore,  Board deliberations and decisions would be at risk of being driven to a large extent by subjective goals and personal compromise.

I do not have concrete suggestions to prevent these unintended consequences from happening, but I sincerely hope that the CCWG takes my concerns into account when it prepares its 2nd draft proposal at its F2F meeting in Paris.  

Thank you for listening.

Cherine  Chalaby

> On 6 Jul 2015, at 22:10, Mathieu Weill <mathieu.weill at afnic.fr> wrote:
> Dear Colleagues,
> In anticipation of our call tomorrow, here are a few points outlining the current thinking about the face to face in Paris.
> Goal of the meeting :
> 2 weeks before the publication of our second (and hopefully last) WS1 public comment the overarching goal will be to find the common views that will be detailed in our 2nd draft proposals. The expected outcome of the meeting is that we find common ground on most of, if not all the open discussions.
> Agenda of the meeting :
> Our plans are to work 8.30-18.00 local time (CEST, UTC+2), with lunch break from 12.00 to 13.00.
> Our plan is to define a topic based agenda, including :
> - WP3 proposals (emerging issues)
> - Community mechanism model (including thorough Q&A with lawyers)
> - modalities of of community mechanisms
> - Removal / recall Board members refinements
> - Government input related discussions (the BA GAC communiqué announced upcoming contributions before Paris)
> - IRP refinements
> We might have to plan sessions on the most difficult topics on day 1 and on day 2 to enable consensus building.
> Please let us know either on list or during the call tomorrow if you have specific suggestions or feedbacks regarding this plan for the meeting.
> Best regards,
> -- 
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06
> mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
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> Accountability-Cross-Community at icann.org
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