[CCWG-ACCT] Notes-Recordings-Transcript links for Face to Face - Paris - Day 1, Session 3 (17 July)

[Kimberly Carlson]

Hello all,

Sorry for the delay.

The notes, recordings and transcripts for the Face to Face - Paris - Day 1, Session 3 (17 July)will be available here:

https://community.icann.org/x/C4FCAw

A copy of the notes and action items may be found below.

Thank you.

Best regards,
Kim


Notes
13:00-13:30 AoC Reviews incorporation into ICANN Bylaws
Two options for review team composition
Clarification of language on the scope of the ATRT review and on OECD guidelines
Participation in the review teams: particular interest from the commercial side of GNSO
Options for populating the review teams:  open membership with normalized voting; fixed number of members with each SO/AC providing a set number of members.
The IANA functions review is a CWG dependency and has been incorporated.

Question about timing: staggered timing to avoid overload of work, and particularly the requirement on the Board chair
Has the current AoC model been considered?
The current model has no diversity requirement and no limit on numbers.  Change suggested for the community to designate rather than chair of the Board and the GAC.  This option published in the first public comment.
The proposal includes a recommendation for an annual report on the status of implementation.
Suggestion about prioritisation of recommendation will be considered by WP1 as either WS1/WS2.
Consideration that the smaller the review team the more effective the group tends to be.  And not intended as fundamental, except for the IFR.
Suggestion to include the Board included as one of the selection bodies.  The size should be reduced.
Prioritisation requires more information than has been available to past ATRTs. Members suggest they tried, but were not able to prioritise.
No object to option 2, compared to the others.  Use the AC room.
Can we launch the text case of bylaws drafting based on the AoC section?
About access to all documents.  And the review team members shall not disclose sensitive and confidential information, but not at ICANN's sole discretion to decide what is sensitive and confidential.
The issue is broader than nondisclosure, there may be competition issues. Note, need to refine this part of the requirement, with a call to help WP1 on this.

13:30-14:30 - Community empowerment model: public comment 2 reference model
Concerns about SO/AC becoming legal persons
Exercise of statutory rights to dissolver ICANN
Derivative powers
The potential for capture by members that taken on membership.
The community mechanisms as the sole member.  The group of participants acting together to exercise rights in ICANN.  Would be the sole member, done through the bylaws.  Not every person participating in a community mechanism has to vote: some can listen, advice or vote.
The SO/AC, act within there internal mechanism.  Insert votes into the community mechanism as needed.  The legal entity shields them from liability for actions of the member body. The sole member is a member of ICANN an is shielded from liability from actions by ICANN.
The sole member would communicate to the Board.
Need at least 2 people, to be there as the legal participants.
The bylaws provide the voting rights and mechanisms by which they votes.  If the community mechanism ignored the voting threshold, then there would be the IRP, legal rights and trust.
Other logistical requirements with members, such as holding an AGM, voting to accept the financial reports, bylaws approval etc.  The statutory rights chart lists all that should be addressed in the bylaws.
Relatively light set of rights: hold a meeting, to amend bylaws, and the board independently can amend.
Composition of the "community council" sole member.  Is it possible to add new SO/AC.
Then community mechanism would be made up of the SO / AC and individuals who would not vote.  Requests to participate would be a decision of the participants in the community mechanism.
The legal entity shield all participants: the limited liability extends to shielding what goes on inside the sole member.  It has no fiduciary duties, cannot be sued for those.
Some participants in the sole membership may have person hood, some will not.  Concerned that some scenarios, may give those that have personhood advantage.  But cannot think of such examples.

Any difference in anti-trust exposure between the models? Don't see a distinction between the three models.
Can the SO/AC set up different voting thresholds, for example to exercise statutory: within the sole member model can draft different thresholds etc.
Designator model: the appointing body must approve removal, can this be applied to the sole member model?  Yes, can be built in.
Not supporting the designatory model, relies too heavily on recall of the Board, which is too disruptive.
Supporting the designator model, which represents the least change to the organisation, greatest stability.
Concern with the sole member model, that it has many open questions.
Comment: see anti-trust risk in coordinated actions within sole member. Response; the sole member approach would require agreement by all the parts of the sole member, and the diversity in that group should protect against anti-trust concerns.
Is there anything to stop the sole member from incorporating outside ICANN?   Response, changing its personhood could be prevented by adding to the articles to prevent it changing it's status without Board approval.
New participants: need to build into the bylaws.
Recalling hearing 'Participation in the sole member is equivalent in participating in ICANN' why the sole member essential?  Response: the counter balance to a board driven or controlled entity is a membership. It's the common structure for controlling the board: electing, removing g the board and a set of reserved powers.
Support for the empowered designator model:  The potential power of a limited number of SO/AC joining the sole member and having the ability to dissolve the corporation and other powers.
Could this concern be addressed by voting thresholds?
An advantage of sole member model, the sole member will be directed by the community, and could make this unanimous or unanimous plus the Board.  Feel can control for this concerns.
Wild card objection from Eberhard.
Grave concerns by Sam.
Hopefully Alan's concerns removed.  Feel there is traction for the sole member model. Objections, please make selves heard.
Please channel through the co-chairs to the lawyers.  Who will answer tomorrow?  Avoid confusion using this method vi the chairs.  Send as soon as possible or close of the meeting today

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