[CCWG-ACCT] Continued Counsel Dialogue
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
Sat Oct 3 16:18:57 UTC 2015
I can't speak for anyone else Niger but I have not accepted the MEM and oppose it completely
--
Paul
Sent from myMail app for Android Saturday, 03 October 2015, 11:41AM -04:00 from Nigel Roberts < nigel at channelisles.net> :
>I remain confused. Have we accepted the MEM, because it originated from
>the Board in a few hours discussion, as being a better alternative than
>the 9 months of debate originating SMM? (Nothwithstanding that I
>personally don't like a *SINGLE* member membership model).
>
>The point I'm (repeatedly) making is one of process, not merits of the
>competing models.
>
>
>'RULING THE ROOT'
>-----------------
>
>Over the last 48 hours I've been reading Milton Mueller's excellent
>history: 'Ruling the Root'. (Hi Milton!). Despite the fact I've seen by
>personal observation of how Milton can, in person, be at least as
>"ornery", as Dr Lisse, which might otherwise cloud my judgment, I cannot
>recommend this book more highly.
>
>It sets out, in exquisite and fully referenced detail, the previous
>occasions (yes, plural) that "an aggressive timescale" led to unexpected
>outcomes.
>
>I will be blunt. If you haven't read this book (or done so a long time)
>then you are failing in your duty towards achieving the goal of the WG
>and it should be your next task.
>
>I'm actually really sorry I didn't read this months and years ago; just
>because I lived a large part of it did not prepare me for the fact that
>this book
>
>(a) synthesises the dynamics that went on in the creation of ICANN and
>documents it to 'before the dawn of (internet) time'.
>
>(b) provides a cautionary tale.
>
>
>It seems to me that the CCWG is hell bent on repeating the mistakes of
>our predecessors rather more closely than I'd already said.
>
>It needs to be required reading for every single ICANN Board Member, GAC
>rep and member of this CCWG.
>
>And it's available on Kindle.
>
>
>
>Nigel Roberts
>
>>> On Oct 2, 2015, at 7:55 PM, Greg Shatan < gregshatanipc at gmail.com
>>> <mailto: gregshatanipc at gmail.com >> wrote:
>>>
>>> Case dismissed.
>>>
>>> On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji < seun.ojedeji at gmail.com
>>> <mailto: seun.ojedeji at gmail.com >> wrote:
>>>
>>> Greg, I think we bring so much legal stuff into this that makes us
>>> forget the element of nature called "choice".
>>>
>>> Can you tell me the outcome of a scenario where the community by
>>> "choice" decides to ask/mandate board to implement certain things
>>> and then if board by choice decides not to implement such request.
>>> Does the community go into the implementation without paying
>>> recognition to the board or what?
>>>
>>> My point was that it is ultimately the judge's verdict that
>>> enforce and not necessarily the membership nor MEM. All through
>>> the escalation process before courts, the community and/or the
>>> board has a choice to make and because there is membership should
>>> not be perceived as final except the court says so.
>>>
>>> Membership however provides the standing to get to enforce in
>>> courts (and such standing is what we are/should also be checking
>>> if it exist within MEM). So membership is not itself the end but
>>> just the means to the end.
>>>
>>> Again focusing on the means(model) and not the end(goals) is what
>>> has been prolonging this process for so long. Earlier in this
>>> process, I mentioned that some of us have limited resources and
>>> cannot continue this aggressive process for so long. Perhaps this
>>> process will exhaust some of us and others well motivated can then
>>> have their way.
>>>
>>> I rest my case!
>>>
>>> Regards
>>>
>>> Sent from my Asus Zenfone2
>>> Kindly excuse brevity and typos.
>>>
>>> On 3 Oct 2015 00:27, "Greg Shatan" < gregshatanipc at gmail.com
>>> <mailto: gregshatanipc at gmail.com >> wrote:
>>>
>>> Seun,
>>>
>>> You are incorrect about how a US membership non-profit
>>> corporation works, and how the membership relates to the
>>> Board. In a membership non-profit, the membership has certain
>>> superior rights vis a vis the Board. I believe this is clear
>>> from the Sidley/Adler documents.
>>>
>>> If there is no membership, then the community can only ASK
>>> board to do things. That seems to be your desired outcome,
>>> but I don't think that is broadly shared within the CCWG. I
>>> think this goes beyond even the Board comments, where they are
>>> willing to give the Community things that at least look like
>>> powers (though subject ultimately to the Board's discretion
>>> and judgment)
>>>
>>> The only reason I can think that "going to court to enforce
>>> would be more closer in the escalation process than we may be
>>> thinking" is the tone and approach of this memo.
>>>
>>> Greg
>>>
>>> On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji
>>> < seun.ojedeji at gmail.com <mailto: seun.ojedeji at gmail.com >> wrote:
>>>
>>> Hi Avri,
>>>
>>> I think it needs to be clear that the community can only
>>> ASK board to do things, whether they would do it is
>>> entirely at the discretion of the board. This is normal
>>> for membership setup as the community has no executive
>>> status to implement.
>>>
>>> That said, I am in full agreement with trying to resolve
>>> things locally as much as possible and if you ask me, I
>>> don't think membership will encourage that approach. Going
>>> to court to enforce would be more closer in the escalation
>>> process than we may be thinking.
>>>
>>> Regards
>>> Sent from my Asus Zenfone2
>>> Kindly excuse brevity and typos.
>>>
>>> On 2 Oct 2015 23:50, "Avri Doria" < avri at acm.org
>>> <mailto: avri at acm.org >> wrote:
>>>
>>> Hi,
>>>
>>> Ultimately yes, they can all end up in court.
>>>
>>> The critical issue in my mind is how many steps we can
>>> take inside the
>>> organizations process to remedy before having to
>>> resort to the ultimate
>>> nastyness - appearing before a judge. I think each
>>> trip to court is a
>>> failure to be avoided. Our model needs to deal
>>> properly with shared
>>> decision making while allowing for problem resolution
>>> in a way that
>>> avoids such failures.
>>>
>>> avri
>>>
>>>
>>> On 02-Oct-15 18:21, Chris Disspain wrote:
>>> > I don’t disagree with you Avri but isn’t going to
>>> court the ultimate
>>> > enforceability in any of the models/ideas we have
>>> been discussing?
>>> >
>>> >
>>> >
>>> > Cheers,
>>> >
>>> >
>>> > Chris
>>> >
>>> >
>>> >> On 2 Oct 2015, at 21:07 , Avri Doria < avri at acm.org
>>> <mailto: avri at acm.org >
>>> >> <mailto: avri at acm.org <mailto: avri at acm.org >>> wrote:
>>> >>
>>> >> Hi,
>>> >>
>>> >> Within ICANN, it rests with the Board.
>>> >>
>>> >> I resist the idea of including going to court as a
>>> normal part of our
>>> >> process. I have argued all the way through this
>>> process, that going to
>>> >> court is something to be avoided and something we
>>> should not consider to
>>> >> be part of the process. Yes at the end of the day
>>> it needs to be
>>> >> possible, but it is a failure indication.
>>> >>
>>> >> avri
>>> >>
>>> >>
>>> >> On 02-Oct-15 06:57, Chris Disspain wrote:
>>> >>> No Avri. At the end of the day it rests with the
>>> court as I believe is
>>> >>> clear from the note from JD.
>>> >>>
>>> >>> After a finding by an arbitration panel that a
>>> bylaw has been
>>> >>> breached, it is a matter for the Board about how
>>> they remedy (as I
>>> >>> believe is the case with the member model also)
>>> and that remedy is
>>> >>> itself subject to a claim that it breaches a bylaw
>>> (if the community
>>> >>> has consensus). If the Board refuses to abide by
>>> the ruling then a
>>> >>> court can order them to do so.
>>> >>>
>>> >>> Have I misunderstood the way the member model
>>> works. I believe Becky
>>> >>> has said numerous times that the only finding
>>> could be that the
>>> >>> relevant bylaw has been breached, NOT that the
>>> Board must take a
>>> >>> specific action. Is that wrong?
>>> >>>
>>> >>>
>>> >>>
>>> >>> Cheers,
>>> >>>
>>> >>>
>>> >>> Chris
>>> >>>
>>> >>>
>>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria
>>> < avri at acm.org <mailto: avri at acm.org >
>>> >>>> <mailto: avri at acm.org <mailto: avri at acm.org >>
>>> >>>> <mailto: avri at acm.org <mailto: avri at acm.org >>> wrote:
>>> >>>>
>>> >>>> Hi,
>>> >>>>
>>> >>>> That was one of my favorite lines as well.
>>> >>>>
>>> >>>> And is a key point. In the current model, and as
>>> far as I can tell in
>>> >>>> the MEM, at the end of the day, all always rests
>>> "within the Board's
>>> >>>> discretion."
>>> >>>>
>>> >>>> avri
>>> >>>>
>>> >>>>
>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
>>> >>>>> I really LOVE this one:
>>> >>>>>
>>> >>>>> [...]
>>> >>>>> "the Board is required to remedy that violation,
>>> within the
>>> >>>>> Board’s discretion."
>>> >>>>> [...]
>>> >>>>>
>>> >>>>> (last line on Page 1)
>>> >>>>
>>> >>>>
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