[CCWG-ACCT] A Contract Solution?

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Tue Oct 13 20:08:42 UTC 2015


Colleagues

 

David Post, who is listed as an “observer” of this group (he says
incorrectly – that he is a participant) asked me to post the following
message on his behalf suggesting an alternate way of going forward.  I am
not sure what I think of his idea, but I imagine it might be useful to some.


 

If I have erred in posting this in violation of some “rule” please accept my
apologies.  I have assumed that the Staff who might correct this mistake
(Grace or Brenda) are en route to Dublin and out of pocket.

 

Paul

 

***

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

******************************* 

 

 

Paul Rosenzweig

Red Branch Consulting, PLLC

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e&id=19&Itemid=9> 

 

 

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