[CCWG-ACCT] Unintended Consequences of the CCWG proposal

Seun Ojedeji seun.ojedeji at gmail.com
Tue Jul 7 16:24:27 UTC 2015

Interesting, even in membership organization pre-approval of non-policy
decision of the board (except bylaw changes) by the community is a feature
that is not practiced.
I think it's important to watch the pre-approval power, I am all for
"reversing power" but not making execution of budget for instance to be
subject to community approval, that would definitely not create a
progressive and sustainable ICANN post transition.

Again I think we may be getting too carried away with "power" and not
considering it's implications in the ICANN context.


Sent from Google nexus 4
kindly excuse brevity and typos.
On 7 Jul 2015 4:59 pm, "Robin Gross" <robin at ipjustice.org> wrote:

> It is worth exploring the extent to which pre-approval processes can be
> baked into ICANN's bylaws that con provide an acceptable level of assurance
> that the board and the community are on the same page on those two issues.
> I do not think we only need to explore rejection rights by the community on
> these two issues, but rather, we should also explore community pre-approval
> powers, and how far we can get with those under an Empowered Designator
> model.
> This is similar to how GTLD policy is supposed to be made under ICANN's
> existing bylaws.  ICANN's existing bylaws provide that the policy is first
> approved by the GNSO Council before it is passed up to the board for final
> approval and adoption.  The board can disregard the GNSO's approved plan,
> ONLY provided they follow a process laid out in the bylaws that requires a
> consultation and negotiation and working together to try to find mutual
> agreement.  The problem we have today is that the bylaws are not
> enforceable against the board, so when the board violates this process,
> there isn't anything we can really do about it.  But since we are creating
> the community power to enforce the bylaws, we would be able to require the
> ICANN board to abide by this bylaws process under the new and improved
> ICANN for budget and strat plan final decisions.
> This isn't a revolutionary idea, but rather bakes a community pre-approval
> process into the bylaws, which will have teeth.  And it is only for these
> two more challenging rights, budget and strategic plan under empowered
> designator, where we need to consider using such a mechanism.  At the end
> of the day, we'd get to the same place: board and community in agreement on
> these two important issues, but perhaps without all the upheaval and
> concern that membership model instills.  Holly said on the call there isn't
> any reason we couldn't do it this way.  So let's explore it and see if it
> gets us where we need to go.
> Thanks,
> Robin
> On Jul 7, 2015, at 6:46 AM, Alan Greenberg wrote:
>  Cherine, My understanding is that the designator model does not allow for
> budget approval, and if I am correct, #2 only applies to membership.
> Alan
> 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 ˆ 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 ICANNâ•˙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 ICANNâ•˙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.
> Regards
> 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
> *****************************
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
>  https://mm.icann.org/mailman/listinfo/accountability-cross-community
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
>  https://mm.icann.org/mailman/listinfo/accountability-cross-community
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150707/c5b323bf/attachment.html>

More information about the Accountability-Cross-Community mailing list