[CCWG-ACCT] A plea for time

[Chris Disspain]

Greetings,

As we approach ICANN Dublin I have been asked by some of my ccTLD colleagues to set out clearly why as a ccTLD manager I support the Board proposals for improving ICANN's accountability as part of the transition. 

In essence for me it’s all about time. 

I believe that we, the community, can get the enhanced accountability we want now without the need for wholesale structural change. I'm not against change or indeed any of the models being proposed but I am against making such changes without carefully considering them over time. There is a significant amount of work to be done before deciding to make such important structural changes and all of that will take time and more research and stress testing and unforeseen consequence analysis and impact analysis.

In essence the Board has supported the CCWG’s proposed fundamental bylaws and the binding IRP and has suggested that there be a Community IRP and a further fundamental bylaw setting in place an ongoing improvement mechanism that will allow the community to take the necessary time to consider the structural changes and to have confidence that the proposals arising from such a process will be implemented. 

I believe that the Community IRP does provide the community with the rights it seeks and that it can be implemented in a timeframe that does not jeopardise the transition. The Community IRP is an independent arbitration process for hearing community claims that the Board has acted outside of its by-laws. Under the process there is a legally enforceable and contractual obligation on ICANN to comply with a decision of the arbitration panel.

I believe that the community find ourselves in our current difficult situation because, with the best of intentions, the CCWG’s attorneys have been instructed to come up with models that deliver ‘the highest possible levels of enforcement’. It is not that the Community IRP cannot deliver the enhanced accountability that we want but rather that it is perceived, by some, as inadequate because there is a different mechanism that delivers a higher level of enforceability. 

The CCWG appears to be requiring a mechanism that allows the community (in whatever guise we finally agree is acceptable) the absolute final say. The right to step over the Board's fiduciary duty without any check or balance in place to allow for the testing of the Board's claim that acting would indeed be in breach of such duty. 

I firmly believe in the corporate governance structures adopted by most corporate bodies around the world. Board members are appointed to manage the affairs of the organisation on the understanding that they are legally bound to act in the best interests of the organization rather than any one member or community. Such best interests are set out in the by-laws - in ICANN's case for example, the security and stability of the Internet as a whole. The Board has a fiduciary obligations to act in that way. 

The ICANN Board has proposed the Community IRP as binding arbitration. The CCWG’s attorneys have said that the Board can refuse to implement such a binding arbitration decision if it claims that to implement it would be a breach of its obligations to act in the best interests of ICANN. This is true BUT the community representatives can then go to court and a court will enforce the arbitration decision if it disagrees with the Board's view. In my opinion this is precisely the type of safeguard we need to have in place because it ensures that an elected board made up of representatives of the multi-stakeholder community will always act, first, in the interests of a stable and secure Internet and it puts in place an independent arbiter to decide, in the final analysis, if the community or the board is right.   

The alternative, it seems to me, is to create, now, a system where fiduciary duty is abandoned and the will of the community holds sway. That is in effect what happens under the membership model as described by the CCWG’s attorneys. This may well be acceptable in the future when all of the nuances have been thought through and the necessary community conflicts and ethics rules, accountability mechanisms and disclosure requirements have been agreed. But it will take time and testing and a fuller discussion. 

Fiduciary responsibilities and duties are there for a reason. I think that some in the community feel that the Board and ICANN legal sometimes use the ‘cloak’ of fiduciary responsibility to avoid doing what the community wants. Whilst I don’t believe that is true I do empathise with the feeling. To my mind the solution (at least at this time during the transition) is NOT to create a mechanism under which fiduciary duty is held by no one but rather to create a mechanism where the community can test the Board's claims about such duty. The Community IRP as suggested by the Board does just that. 

I want to stress again that I am not against any of the proposed models put forward by the CCWG. But I can't agree the models at this stage because I don’t believe we have enough detail and I think the community as a whole should take their time in considering making such important changes. And I do not agree with those who claim that "we must do it now because it's our only chance".  

I am very much looking forward to spending time with my ccTLD colleagues during the Dublin meeting and hope we will have the opportunity to talk, and not just about the transition.


Cheers,

Chris Disspain | Chief Executive Officer
.au Domain Administration Ltd
T: +61 3 8341 4111 | F: +61 3 8341 4112
E: ceo at auda.org.au <mailto:ceo at auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> 
auDA – Australia’s Domain Name Administrator

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