[CCWG-ACCT] Unintended Consequences of the CCWG proposal

Alan Greenberg alan.greenberg at mcgill.ca
Tue Jul 7 13:46:29 UTC 2015

Cherine, My understanding is that the designator 
model does not allow for budget approval, and if 
I am correct, #2 only applies to membership.


At 07/07/2015 02:45 AM, Cherine Chalaby wrote:
>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 separaate 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 
>><<mailto:mathieu.weill at afnic.fr>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
>><mailto:mathieu.weill at afnic.fr>mathieu.weill at afnic.fr
>>Twitter : @mathieuweill
>>Accountability-Cross-Community mailing list
>>Accountability-Cross-Community at icann.org
>Accountability-Cross-Community mailing list
>Accountability-Cross-Community at icann.org
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