[CCWG-ACCT] A plea for time

James Gannon james at cyberinvasion.net
Mon Oct 12 10:57:23 UTC 2015


An additional question that I think is also critical to our progress is in the event of arbitration going to court will the California court system uphold the outcome of an arbitration in the face of the board claiming business judgement. I believe from my own research that this is very very unclear and would be a critical issue for us to understand (I don't believe this will be a yes or no answer from either counsel so will be a judgement call for the CCWG to make with informed legal input)

This will have a serious impact on one of the core dependencies, i.e the ability to enforce the separation of the IANA if required, this has to be one of our cornerstone gates for moving forward through Dublin. Without a solid answer to this question under models other than membership I don't know if we will be in a position to fulfil this critical part of the CCWG's mandate from the CWG.

-James
________________________________________
From: accountability-cross-community-bounces at icann.org <accountability-cross-community-bounces at icann.org> on behalf of Malcolm Hutty <malcolm at linx.net>
Sent: 12 October 2015 11:01
To: Accountability Cross Community
Cc: CCWG Accountability
Subject: Re: [CCWG-ACCT] A plea for time

On 12/10/2015 00:06, Jordan Carter wrote:
> *In closing, I'd like to stress that the most important thing we can do
> is be up front and honest about what we do and don't support. *
>
> _I don't support the Board's MEM proposal_ for the reasons set out above
> - it is untested and novel and hasn't been developed through a
> multistakeholder process. To validate it and think it through will delay
> this process and delay the transition.

I agree.

> _I do support the CCWG's proposal_. It needs improvement but it is a
> genuine result of multistakeholder efforts, and after the community
> dialogue in Dublin we will know the remaining points of modification needed.

I agree.

> _I could support, based on what I know today, a new synthesis_ with no
> membership but careful use of designators and the revised community
> consensus decision-making the CCWG is developing.

I'm not so sure. I don't think membership should be a matter of taste,
it should be a question of whether it is required or beneficial to
achieve our goals.

There is currently a crucial question awaiting our Counsel's advice,
Question 68 https://goo.gl/g0i64o

This asks whether ICANN can be compelled to enter binding arbitration,
on pain of forfeiting through a default judgement if it refuses to enter
arbitration in a specific case. If the answer comes back as "no" (or
less than a clear "yes"), then a membership model will be essential. The
reason is that it will be necessary to ensure that someone has the
capability to require ICANN to enter the IRP, as the Bylaws require it
to do; only a member is capable of enforcing the bylaws through a
derivative action.

It is possible that there may be other reasons why membership is the
only viable model. These should be considered and examined fairly. If
membership is required, then we must not compromise. If we can do
everything we need without it, then compromise can be entertained.

> _All of these proposals need further refinement and the discussion has
> to go on until there is consensus. Until there is, nobody should try and
> finalise the proposal, because it'd be dead on arrival._

I agree.

Malcolm.
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