[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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