[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Meeting #35 - 2 June

[Kimberly Carlson]

Hello all,

The notes, recordings and transcripts for the CCWG ACCT meeting #35 - 2 June will be available here:

https://community.icann.org/pages/viewpage.action?pageId=53775798

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

Thank you

Best regards,
Kim


ACTION Items
Notes

CCWG ACCT - Call # 35 - 2 June 2015.

LINKS
Public Comment Announcement: https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-2015-05-04-en
Draft Report: https://community.icann.org/download/attachments/50823981/CCWG-Draft-Proposal-clean.docx?version=2&modificationDate=1430780681000&api=v2

AGENDA:
1. Welcome, Roll Call & SOI
2. CCWG Unincorporated Associations
3. Follow up on input received regarding membership
4. Work Plan after Buenos Aires
5. A.O.B

NOTES & ACTION ITEMS:
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.


1. Welcome, Roll Call & SOI

Sébastien Bachollet, call only

2. CCWG Unincorporated Associations

Sample article of association

An example of how an SO/AC might create articles when forming and unincorporated association. Just 3 or 4 sections in these articles

Not as complex as some have thought. Advised by counsel that there is not much more than what you see on your screen. And note that this is only to constitute the legal vehicle, the powers are exercised by the SO/AC

Q. Why are we just focusing on one solution? And will we have other solutions presented in the same way.

co-chair - don't feel we are pushing this unduly. It is proposed as the main proposal in our recommendations

"member" is one possible solution. And designator was discussed, and that there were weaknesses with that proposal in 2 areas: on budget and strat/ops plan.

Q. Some SO/AC may wish not to be a member. What role do they have in the future arrangements? Can they participate? And the role of an AC that does not appoint a director, do they have a role in the recall of the whole board. Also the issues around the bylaws changes.

A. Many of these issues have been answered. And in email since the last call.
Issues around the binding nature of the IRP. And misunderstanding over the IRP in making its decisions.

Jorge's question in chat: there is a recurring theme I guess for different stakeholders, including governments: what does it mean from a liability point of view to be a member of such an unincorporated association? in detail? Asking Counsel to answer later in the call

The situation of some SO/AC creating a UA and some would not, if public comment confirms this situation, then we will consider this scenario, and will work on new drafts and proposals, But for now we do not want to duplicate work of the public comment.

The desire for enforceability has moved us to consider the member structure, as this is the only way to provide such enforceability.

Most stress tests will fail if we do not have enforceable powers.

Are we going to fast in thinking the membership is the only way for achieve the solutions we want. A time will come for a step back and consider if this is really what we want. Could the ICANN board go haywire and ignore its own bylaws is just to extreme a scenario. And there are entities, such as ccTLD, with relationships with ICANN that are legal entities and they could take ICANN to court. We may be over complicating this.

There is a need to reconsider.

Issue of are we looking a member of designator model. Issue of UA and how they fit with that. And the issue of enforceability. Regarding enforceability, there is one in place now, it is with NTIA. Need to consider if the transition can go forward without that enforceability. DNS too important for an arrangement based on goodwill

For both the member or designator models, they do need to be legal persons, and that is where the UA come in.

These UA, as we see from the articles on screen, these are extensions of the SO/AC and are simple to form.

The proposal is about giving us enforceable powers. We are no trying to build a system that resorts to the courts. That rights are enforceable in law is what we have today, part of the status quo.

It's not that UA are complicated to create. But it is how they fit with ICANN. ALAC does not see the need for the level of enforceability being suggested. Don't see the NTIA contract as ever having that role in enforceability. Might not be able to overrule the board, but we will be able to remove them. Removal of directors, some or all, are powerful accountability mechanisms. Not clear we need other mechanisms.

Without the ability to enforce the right to remove directors, then the power is weak.

An important discussion. Different views on the options. Public comment will help us understand which options have traction, and where there are problems. Clearly the UA path needs more work. But it is the option that our external advice says is the most promising. If we reject this option then need to answer why.

Keep scenarios open and learn from the public comment.

Need to respect everyone's opinions. If we seek legal advice, we will get legal solutions. Do we need the member structure to get the legal enforcement that we need?

Perhaps public comment will provide a mixed response on our solutions or even new options. We should listen to other solutions. Remember that we the community select the board.

Legal consel: Fundamental discussion: early there was clear consensus that the status quo needed improvement and that the ICANN board needed to be more accountable to the community. As external legal counsel we looked at the legal lens, if things go fundamentally wrong then you need enforceability. Tell us what you want to accomplish, and we will try to help you accomplish that, with pros and cons, from an enforceability perspective. And you can go back, and rely on trust. But while today you have a board selected by the community, there is a lack of trust in that board. And the question we hear from you is how to fix that?

Selecting and removing directors is a simple accountability mechanism. But of you want to enforce that, there must be some legal personhood, an individual, a UA, a partnership, etc.

What do you want to accomplish? If you agree on that, then we find solutions. Might need to rethink goals. Membership was a simple way to do what we heard you wanted to achieve.

If this is problem now we come to implementation, then we need to re-think.

If you want less enforceability, then there will be more options. What level or trust vs what level of enforceability? Is reliance on who is on the board and changing that what you need, or do you want more. This is the tipping point for designators and members. We can achieve the former through contract.

Court is an unusual occurrence. Very unusual to take as a last resort.

It's CCWG's choice if the backstop of court is needed, as a stick. Do you want the power to remove directors, or do you want more? Or is trust enough? (end legal counsel)

Cannot imagine a scenarios where if we have in the bylaws to remove the directors. And pre-signed letters from the directors saying they will resign under certain criteria. Cannot imaging them not resigning when the criteria are met and community demands.

Becky, slide presentation.

Dispute resolution - some high level findings. What are we talking about when we talk about litigation. The rights that members of a public benefit limited corporation have. To enforce fiduciary obligations. But not taken to court for a whole range of issues. These are limited.

Can we force the first step of going to dispute resolution, yes, the courts can provide this.

If it is the communities wish then we can turn to our international arbitration rather than to a California court.

One member cannot bring and IRP. Cannot bring challenges unless you are involved in the process that led up to the disagreement. And a bond.

Will a CA court follow an IRP or try to second guess. Courts have been very differential to IRP decisions.

Yes, we can avoid having CA courts solve disputes so long as we give people real rights in other processes.

Need to descried what we want to achieve. And the stress test the scenarios.

CA courts will not do crazy things and enforce their will on the ICANN community

To the extent that the bylaws provide for a review for people materially harmed by ICANN action/inaction. Those affected parties have the rights under the bylaws to seek and IRP. If the question is how do we prevent an endless cycle of IRPs, this is really a separate question. Need a balance between access and preventing abuse.

When we hear about endless litigation, what they assume is the board might be lawless and refuse to abide by its obligations. But this an unlikely scenario, and rules and powers will reduce the likelihood of dispute.

Legal counsel. This is not new research. Happy to provide if requested.

4. Work Plan after Buenos Aires

It will he a new time for our work in the next few days. Public comment ends tomorrow. And will see the populated public comment tool by the weekend and WP will begin work.

In BA need frank discussion with the community. About agreement, disagreement and areas on misunderstanding. Our goal is to submit to the SO/AC in Dublin, they need 15 days prior to review. We need a 40 day public comment. We need to review as a whole group the outcome of public comment and from BA. And that is why we are considering a meeting in July.

The chairs suggest a F2F meeting rather than remote intense work days. But that not off the table. Hence the doodle pool. With 2 favorable dates emerging


But we do need to make arrangements quickly. And consider conflicts with other meetings such as IGF USA and IETF.

F2F or intense online work days: F2F felt to be more productive.

Eberhard. 3 questions add to the public comment period. Why?


Because of a drafting omission. The questions are in the proposal, but not other places. The public comment page has been updated. We will ask those who have submitted to comment already if they need to review.

END


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