[CCWG-ACCT] A plea for time

Sun Oct 11 19:22:54 UTC 2015

Hello Avri,

Not sure I get why you awarded accolades to SM in this instance, Isn't
collaboration(doing things cooperatively) based on set of guidelines
possible in any model including SM? Both parties will end up in courts
when/if either of the parties does not follow the set guideline. (although
it's usually checking board compliance and not that of the community as
it's assumed community usually complies)

In my opinion I think the more we introduce community powers that conflicts
with board's fiduciary duties, the more likelihood of visiting the courts.

That said, going to courts is not something that board or community wants
to be doing and its important to setup as much dialogue possibilities
between the duo before heading to courts. I would say a lot would have gone
wrong by the time we get to the stage where community and board are heading
to courts.

Regards
Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 11 Oct 2015 19:48, "Avri Doria" <avri at acm.org> wrote:

> Hi,
>
> I do not see that at all.  I think the SM offers a model by which it is
> done cooperatively if it is done at all and does not include the courts
> unless either of them decides to act unilaterally.
>
> avri
>
> On 11-Oct-15 13:53, Seun Ojedeji wrote:
> >
> > Hi Avri,
> >
> > I was waiting for someone to highlight how that plays in the SM so one
> > could perhaps identity the differences (if any). Based on your
> > response, it therefore seem that in both cases the court will rule in
> > favour of the group with fiduciary duty (which is the board in both
> > cases).
> >
> > Thanks
> >
> > Sent from my Asus Zenfone2
> > Kindly excuse brevity and typos.
> >
> > On 11 Oct 2015 18:28, "Avri Doria" <avri at acm.org
> > <mailto:avri at acm.org>> wrote:
> >
> >     Hi,
> >
> >     It is interesting.  I don not think it was on the CCWG horizon
> >     until the
> >     Board brought it up as a consideration for the SM.  We have since had
> >     extensive discussions on the fact that this power already exists
> >     in the
> >     Board's hands. We have also gotten advice that issues like this can
> be
> >     locked down in the SM model with bylaws requirement like:
> >
> >     - must be triggered by the Board to even be considered
> >     - requires full consensus.
> >
> >     I think the test both for closing the doors and for rejecting the
> >     closure of the doors can easily be covered for the SM model.
> >
> >     Of course we have to formally discuss and agree upon measures for
> >     fixing
> >     the gaps in the SM model. We are still in the pre-discussion about
> >     whether and how to have the discussion.  Now that is interesting.
> >
> >     avri
> >
> >
> >
> >
> >     On 11-Oct-15 12:48, Seun Ojedeji wrote:
> >     >
> >     > Hello,
> >     >
> >     > I will like to hear how the scenario you indicated below will be
> >     > different if it were SM model? Please bear in mind that board still
> >     > have fiduciary responsibilities in both cases.
> >     >
> >     > On a lighter note, is it not interesting(unfortunate) that self
> >     > destruct scenarios is one the factors informing our proposal.
> >     >
> >     > Regards
> >     >
> >     > Sent from my Asus Zenfone2
> >     > Kindly excuse brevity and typos.
> >     >
> >     > On 11 Oct 2015 17:31, "Rubens Kuhl" <rubensk at nic.br
> >     <mailto:rubensk at nic.br>
> >     > <mailto:rubensk at nic.br <mailto:rubensk at nic.br>>> wrote:
> >     >
> >     >>     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.
> >     >>
> >     >>
> >     >
> >     >     Just a small stress-test on this: let's say that ICANN is
> >     behaving
> >     >     so erratically that the community asked for ICANN to dissolve
> >     >     itself. Board refuses, community goes to Community IRP and
> >     >     prevails. Board then refuses again, saying that fiduciary
> duties
> >     >     to the corporation prevent them from implementing that
> >     decision...
> >     >     when this matter goes to court, a court may say that the
> >     articles
> >     >     of incorporation indeed prevent the board from dissolving the
> >     >     company, no matter any reasoning to the contrary. The court
> >     might
> >     >     not have latitude to tell ICANN to do otherwise even if the
> >     court
> >     >     agrees with both the community and the IRP panel.
> >     >
> >     >
> >     >     Rubens
> >     >
> >     >
> >     >
> >     >
> >     >
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