[CCWG-ACCT] Continued Counsel Dialogue
Avri Doria
avri at acm.org
Sat Oct 3 16:21:45 UTC 2015
Hi,
I do not think we all have accepted the inevitability of MEM. But I
think those who see great urgency in the transition, knowing that this
is possibly the the only thing the Board will agree to*, seem inclined
to accept what they can get.
And while it is not the position I take, I can see the logic in that.
If you believe that transition is the most important goal, then nothing
can be allowed to stand in its way: we should do what the other OCs did,
accept that the status quo of the ICANN relationship is good and move on
with a few tweaks. For all its problems MEM is an improvement. Until
MEM it was declared legally impossible for the Board to ever have
binding mediation or arbitration with the community or any part thereof,
except for contracted parties within the context of their contract. Last
year, before the transition process was initiated, MEM would have been
greeted with cries of Hosanna.
I have a paper copy of Milton's book and even read it when i first got
involved with ICANN in 2005 and believed it a good introduction to many
of the issues. I also recommend people read it. But history does not
repeat itself, as juxtaposition of 2 quotes indicates: it may rhyme, but
things are never the same, "one can not step in the same river twice."
This situation is different, though it may rhyme. One essential
difference is that the origins of ICANN included the NTIA backstop until
such time as that oversight withered away. Any solution we may come up
with will not have that element.
avri
* (Unless of course you assume a party in a negotiation never puts their
bottom line as their initial negotiating position)
On 03-Oct-15 11:41, Nigel Roberts wrote:
> 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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