[CCWG-ACCT] A contractual solution for the "membership"/accountability problem

Alan Greenberg alan.greenberg at mcgill.ca
Tue Oct 13 20:36:19 UTC 2015


With the usual "I am not a lawyer disclosure", my 
understanding is that the Bylaws are effectively 
a contract. In all of the contructs (whether it 
is the CMSM, CMSD or (my most recent proposal) 
CMSanything, there is an UA composed of the AC/SO 
(or a subset), or in the earlier models multiple 
UA, one per AC/SO. In the Board proposal, since I 
do not believe that the AC/SO Chairs are willing 
to assume responsibility for taking actions 
personally (nor should they be expected to), 
there would also have to be an UA formed to act 
on behalf of the AC/SOs. As I understand it, the 
UA would have to exist at the time the of the 
violation or act that it was complaining about, 
so that really implies it would have to exist at 
the start (since one cannot predict when trouble will arise.

So in my mind, the CMSx, the Board proposal, and 
your new one all really have a common construct 
of a UA acting on behalf of the AC/SOs. The 
differences are in how the "contract" or the Bylaws allow the UA to act.

The recent legal briefing on our current model 
(ie in the Bylaws today) says that although the 
AC/SOs and NomCom that appoint board members are 
not called designators, for all intents, they 
are. The new constructs (any of them) would allow 
the AC/SOs or a subset to exercise the powers 
other than appointment of directors. We have been 
told (by CCWG lawyers) that these powers are 
enforceable (other than budget/plan veto).

 From a practical point of view, I think that all 
of the proposals are in fact very close to each 
other, but the different terminology and in some 
cases, a lack of precision masks that similarity.

Alan

At 13/10/2015 04:08 PM, David Post wrote:

>To all:
>
>David Johnson and I have been developing an idea 
>that might be able to break the impasse between 
>the Board and the stakeholders regarding the 
>membership model as a vehicle for community 
>control over the Board's actions.  Here's 
>David's description of the overall idea:
>
>ICANN Accountability ­ Back to Contract
>
>There is broad agreement that the community 
>powers recommended by the CCWG should be 
>"enforceable". The proposal assumes that the 
>Unincorporated Association that would enforce 
>them would have to be created by, and made the 
>sole "member" of ICANN, by means of an 
>amendment to ICANN's bylaws. Only the Board can 
>amend the bylaws, and they do not want to create 
>a member. This would appear to create an 
>unresolvable stalemate. Until one recalls the 
>scene from Indiana Jones when, treated by a 
>knife twirling thug, the hero remembers that he has a gun and uses it.
>
>As CCWG's counsel have noted, an unincorporated 
>association can be formed by any group with the 
>requisite intent, with minimal formality. So the 
>community UA, consisting of and acting only at 
>the direction of the SOs and ACs that make up 
>the ICANN community, could be formed directly by 
>the actions of that community. The UA, now a 
>legal person, could enter into contracts (using 
>whatever decision-making process is provided in 
>the UA's own bylaws). It could, for example, 
>make an offer to enter into a contract with 
>ICANN itself. Such a contract might provide that 
>ICANN would promise to adopt and abide by a 
>specified set of bylaws (notably, those 
>providing for community powers and an enhanced 
>IRP). The contract could provide for specific 
>performance and dispute resolution (not unlike 
>the MEM, but with the group doing the 
>"enforcing" having been formed in advance of 
>any bylaw violation). The contract could make 
>individual SOs and ACs, or even subcomponents of 
>these, into third party beneficiaries entitled 
>to enforce the contractual promises as against 
>the ICANN corporation. In light of these 
>commitments, the community UA could itself then 
>promise to give its collective approval to the IANA transition.
>
>ICANN's Board would still need to agree to any 
>such contract, to make it binding. But the Board 
>would no longer have an objection based on 
>supposed dangers of creating a "member". It has 
>said it agrees that the proposed community 
>powers should be enforceable, and that IRP 
>decisions enforcing revised bylaws and mission 
>statement should be binding. The CCWG can reach 
>its own consensus on what contractual terms 
>(what draft bylaws to include by reference and 
>what community decision-making process to use 
>regarding decisions to offer and enforce the 
>contract). It would be difficult for the Board 
>to refuse to sign such a contract ­ once 
>supported and offered by an Unincorporated 
>Association consisting of the community and acting with requisite consensus).
>
>The community only supported "membership" 
>because this was thought to be the only way to 
>make the proposed community powers enforceable 
>against a reluctant ICANN board. If there is 
>another way to accomplish enforceability, while 
>avoiding the Board's objections to "structural 
>change" of ICANN itself, that should be 
>acceptable. That "other way" is to enter into a 
>contract under which ICANN promises to adopt and 
>comply with specified bylaws and to establish a binding IRP.
>Because there won't be a binding IRP to enforce 
>a duty to create a binding IRP, the registry 
>constituency has already suggested that there be 
>a contract that requires ICANN to follow through 
>on that promise. This suggestion just applies 
>the same principle to the entire community and 
>all of the proposed community powers. It's time 
>for ccwg to start drafting contract terms.
>
>
>***********************************************
>
>Here's a rough outline of the logistics of how this would work:
>
>Acting by consensus resolution, SOs and ACs 
>would form an unincorporated association. This 
>would include writing bylaws regarding 
>decision-making process for the UA (action 
>solely at direction of consensus of SOs/ACs?) As 
>its first act, the UA would offer ICANN a contract with the following terms.
>
>1. ICANN would agree to adopt and abide by a 
>specified set of bylaws (which would be attached 
>as an exhibit to the contract) that set forth 
>community powers and establishment of binding IRP.
>
>2. The contract would have a term coterminous 
>with ICANN's existence and could not be 
>cancelled. (no expiration date and no grounds for termination by ICANN)
>
>3. The contract would call for specific performance.
>
>4. Disputes would be resolved by the IRP, and 
>would be binding on ICANN (even if ICANN chose not to appear before the panel).
>
>5. In addition to the UA itself, Any two SOs or 
>ACs, acting by internal consensus, could bring a 
>case to enforce the provisions, and ICANN would pay the costs of such a case.
>
>6. The contract would name as third party 
>beneficiaries any Individual SO/AC, sub 
>constituencies and any parties materially harmed 
>by breach of the agreement - providing that 
>these third parties could also bring a case to 
>enforce the agreement, at their own expense, with costs allocated by the IRP).
>
>7. ICANN would promise that, in the event the 
>terms of the contract could not be enforced in 
>the absence of a "membership" structure, it 
>would recognize the UA as a member under California law.
>
>8. ICANN would warrant that it has the authority 
>to enter into the agreement and agree that it 
>will not assert in the future that compliance 
>with the contract would be prevented by any 
>claimed conflict between the contract and the 
>ability of the Board to exercise its fiduciary duties.
>
>9. The UA would agree, in light of these ICANN 
>promises, to support the transition (treating 
>ICANN as the steward of the IANA function and as 
>the source of policy for dns absent any ability 
>of US Government to take that role away).
>
>Obviously, there are still some unresolved 
>details regarding what the bylaws would say 
>(e.g., re community oversight of budget). These would have to be resolved.
>
>
>David
>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
>blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
>book (Jefferson's Moose)  http://tinyurl.com/c327w2n
>music 
>http://tinyurl.com/davidpostmusic  publications etc.  http://www.davidpost.com
>*******************************
>
>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
>blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
>book (Jefferson's Moose)  http://tinyurl.com/c327w2n
>music 
>http://tinyurl.com/davidpostmusic  publications etc.  http://www.davidpost.com
>*******************************
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