[CCWG-ACCT] Unintended Consequences of the CCWG proposal

[Seun Ojedeji]

Hi Mathieu,

I will hold on to your conclusion and trust that it will be very evident in
the final CCWG report(proposal).

Thanks

On Wed, Jul 8, 2015 at 12:40 PM, Mathieu Weill <mathieu.weill at afnic.fr>
wrote:

>  Dear Cherine,
>
> Thank you very much for taking the time to articulate your concerns and
> share them openly on this list. This is very useful to achieve what we
> called for in Buenos Aires : a fruitful dialogue with mutual respect. Your
> points are very useful to highlight what we need to keep in mind and
> improve, including the communication about our proposals.
>
> The comments I make below are not CCWG comments, but rather personal
> thoughts about the purpose of Enhancing Icann's Accountability. Sometimes
> we get lost in the details of the mechanisms and tend to lose track of the
> reasons why we go through this process. That is why this note is not much
> about the mechanisms but rather the vision our group is developing.
>
> If you find it appropriate, feel free to share these comments with the
> rest of the Board. I am certain that the concerns you raise are shared by
> other Board members, and it is certainly valuable to have this dialogue
> with the whole Board.
>
> Unintended Consequence 1:   Weakening ICANN's Governance model ?
>
> The headline of this section highlights the difference of perspective one
> can have of Icann's Governance model. I believe personnaly that the
> empowered community strengthens Icann's Governance model by setting up a
> *mutual accountability* between the Board and the Community, instead of the
> currrent model where the Board is fully empowered on all issues : it has
> the last word on Bylaws, budgets, policies, disputes, etc. The only
> *perceived* backstop is the NTIA, thanks to the leverage provided by the
> IANA contract and the AoC.
>
> It is true that the CCWG proposals have focused so far on providing more
> powers to the Community. But I insist the underlying model is about mutual
> accountability, separation of powers. The community holds the Board
> accountable through this limited but powerful set of rights ; the Board is
> still in charge of running the corporations and holds SO and ACs
> accountable in terms of policy making or structural improvements. SO/AC
> accountability is an item of work we are currently investigating further,
> taking into account the comments we have received so far.
>
> So both bodies are selected by the community, both bodies must be
> accountable, both bodies pursue the same Purpose, which is the Purpose of
> the organisation. The big change is that they are mutually accountable and
> powers are shared.
>
> Unintended Consequence 2:   Threatening ICANN's financial stability ?
>
> In this section you mention three threats : budget paralysis, instability
> of the business environment and unfairness to minority interests. As a
> reminder the current proposal would enable the community, if a SO/AC
> approved a petition against a budget or strategic plan, to vote on this
> budget. Only if 2/3 of the communitty votes against the budget or strategic
> plan would it be rejected. This means that a budget that would secure
> support from only 1/3 of the community would not be blocked.
>
> We are aware of the need to review our proposals to mitigate any risk of
> budget paralysis, and provide more details on the continuity measures in
> case a budget would be rejected. Just like the Board usually asks to be
> trusted by the Community, I guess we should also consider the opposite :
> can we seriously imagine a situation where more than 2/3 of the community
> would become so obsessed with their respective "pet" projects that they
> would jeopardize Icann's stability ? Does a strategic plan or budget that
> gets less than 33% support deserve to be carried forward ? There needs to
> be a balance found, and I am confident this can be achieved.
>
> Regarding business environment stability I must admit I can't really see
> how our proposals are degrading the current situation. Icann policy
> decisions often are decried as creating instability for business, I have
> difficulties anticipating that budget decisions by themselves would have
> such an impact ?
>
> And with regards to unfairness for a minority, I believe your point raises
> a fundamental question : should Icann be funding anything "for the benefit
> of a minority" if the rest of the community disagrees ? If Icann decisions
> are based on consensus and aim at fulfilling a common purpose, then I would
> argue that no project should raise opposition by 2 thirds of the community,
> even though direct beneficiaries might be a subset of stakeholders only.
>
> In conclusion on this point, budgets and strategic plans are tough, and I
> know that. Especially in the multistakeholder environment where bottom up
> is key. And it is a key responsibility for the Board to define these plans
> and budgets not only so that they enable continuity of operations, but also
> so that they are supported by the community. This means that the Board
> needs to ensure, not only that it takes input into account but also that it
> gets buy-in. This is in my opinion, what our proposals will enable to
> achieve : greater alignment behind the strategy and budgets, for the
> benefit of the Purpose of Icann.
>
>
> Unintended Consequence 3:  Dysfunctional Board ?
>
> Your concern is that the threat of removal of Board members without
> justification would lead to Board members fearing the loss of their seats
> if they do not adhere to the wishes of the constituency which appointed
> them. This concern has been raised by others in our public comment and we
> have launched additional work to see how best to address this.
>
> While I agree with you that a Board that would function as a
> representative body would not be appropriate, I also have to question
> whether a Board functioning on the basis of the addition of 16+ individual
> views (which are also subjective and certainly have no way to exclude some
> personal agendas) would be more, or less, appropriate to ensure that Icann
> fulfills its Mission. I see no contradiction between the Board being a
> place for debates, sometimes clashes, then reconciliation behind a common
> goal, and the fact that the Board would then act as a body in the interest
> of the Purpose of the organization (note that I am not mentioning the the
> interest of the organization itself but its purpose here).
>
> You have more experience than I have, but it seems to me that most Boards
> across the globe acknowledge the fact that shareholders (or stakeholders)
> appoint Board members, that some of these Board members take the interests
> of certain shareholders to heart, and that they can be removed at will. To
> my knowlege this is the situation in most corporations, as well as in many
> membership organizations.
>
> Being a Board member is not a "regular" job. It is always a service, to a
> company, to a community, and it is not always rewarding : the CEO gets the
> media attention and fancy presentations when everything's ok while you work
> in the background, and the Board members are liable, and people turn to
> them when things go wrong. I believe accepting the fact that one can be
> removed at any time would actually enhance Board member's ability to
> contribute : it reminds everyone out of the Board that THEY appointed you,
> and could remove you if need be. And until then, you are doing your best to
> serve the Purpose of Icann.
>
>
> To conclude, I hope we can pursue this dialogue and, at the same time,
> focus our efforts to deliver proposals in time. We need Board members
> inputs, we also need your support and efforts to get to a point of
> consensus that is sufficient to get approval in Dublin. There is no
> question to me that we are all in this together, trying to demonstrate the
> value of the multistakeholder model and its ability to "up its game" to
> face the challenge of the transition. This implies that we all, co-chairs,
> members, leaders of Icann,  feel accountable to reaching consensus.
>
> Best,
> Mathieu
> PS: For full disclosure, I acknowledge that in my role as co Chair of the
> CCWG-Accountability I can be removed without cause at any point (some argue
> that I should say "be relieved") ;-)
>
>
>
>
>
>
> Le 07/07/2015 08:45, Cherine Chalaby a écrit :
>
> 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.
>
>  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
> *****************************
>
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>
>
>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
>
>
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>
>


-- 
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*Seun Ojedeji,Federal University Oye-Ekitiweb:      http://www.fuoye.edu.ng
<http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email:
<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
<seun.ojedeji at fuoye.edu.ng>*

The key to understanding is humility - my view !
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