[CCWG-ACCT] For Enforcement Model small group on Saturday - Tables & Plan B slides

Sat Oct 17 06:42:41 UTC 2015

Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 17 Oct 2015 04:38, "Aikman-Scalese, Anne" <AAikman at lrrlaw.com> wrote:
>
> Dear all,
>
>
>
> If the group ends up focusing on Sole Designator as the “candidate way
forward”, it seems to me that this can only be a result of Board input
since the majority of public comment supported the Sole Member.
>

SO: I don't think your rationale here is accurate even though I don't see
anything wrong in it if it were the case. I say this because board some
time ago said they don't believe SD remove their concern. Secondly, the 2
PC ran by the CCWG has been about member model so it's not appropriate to
conclude what model option the PC supported when it only had an option to
comment on.

>
> 1.       Based on public comment and the Sidley legal advice, the CCWG
should issue a Supplemental Report keeping the Sole Member model but
specifying that the exercise of all the Community Powers must be
accompanied by unanimous consent of all participating SOs and ACs and that
no SO or AC objects even if not participating in the Sole Member consensus
call.
>

SO: This somewhat is not in sync with what you already stated about moving
from SM to SD; you seem to be suggesting that the shift doesn't happen
because unanimous consent will be expected norm for any model.

> 2.       For certain extreme Community Powers, e.g. dissolution of the
corporation, specify that community enforcement may not be commenced except
by being triggered as the result of a Board resolution.  (Per Sidley, this
has to be fixed anyway since the current ByLaws would permit a majority
vote of 5 out of a quorum of 9 directors present to dissolve the
corporation and that is just silly.)
>
SO: +1 to this, in addition (even though it's may be obvious), the process
though triggered by board must not be concluded by board unilaterally.

> 3.       Some SOs and ACs may not agree with the Supplemental Report and
will note their disagreement on the record, citing the fiduciary
responsibilities of the Board and their confidence in the Board and the
desire to change as little as possible.
>

SO: I believe the CCWG requires agreement of all chattering organisation. I
expect that minority views are allowed but so long as they all sum up to
support then I guess we should be fine. Nevertheless, your statement above
is still somewhat inconsistent with the premise your started with.

> 4.       Some SOs and ACs will support the Supplemental Report citing the
MSM and citing the CWG-Stewardship conditions related to strong Community
Powers.
>
SO: This seem like prediction so I don't have comments on this.

> 5.       There will be a very short public comment period on the
Supplemental Report because not a lot has changed from the Second Draft
Report.  What has changed is how consensus is developed (not via voting but
via consensus call) and that consensus is specified to be unanimous.  What
has also changed is that some community powers, e.g. dissolution, cannot be
invoked  without first being triggered by a Board resolution.  (See the
Sidley memo on how to limit powers of the member to address risks
identified by the Board.)
>
> 6.       The Board will consider the Supplemental Report and the CCWG
Charter provision will kick in which requires 2/3 majority of the Board  to
reject and then a formal dialogue phase kicks in but at least you have
followed the MSM public comment procedure and you have followed the
CWG-Stewardship Final Report requirements.  The Board cites its fiduciary
duty, its concerns about SO/AC Accountability and various public comments
received and solicited in Dublin in open sessions.
>
SO: I think it will be good to check what the charter says about how board
considers the CCWG report. I don't get why you are predicting what
different parties will do but I guess you know why.

> 7.       After the Board votes by 2/3 majority to reject the CMSM, the
dialogue “begins” and the Community modifies the enforcement model to Sole
Designator.  CWG-Stewardship goes back to modify its Final Report in light
of formal Board input and expresses the opinion that the Sole Designator
model meets the accountability requirements it has recommended with respect
to the IANA transition.
>

SO: There is no need to go through that route, whatever comes out as the
outcome of the CCWG here in Dublin should be available to CWG to analyse
against her requirements.

> 8.       When Sole Designator is presented to NTIA, no one is able to say
that the CCWG changed its model based solely on Board pressure alone.  All
proper procedures in the MSM and in the Charter have been followed.
>
SO: Hmm... Well the report is not the only thing to be submitted to NTIA,
the process taken is part of it and NTIA is participating in this process
as well. Whatever is the outcome of this process has to be owned and taken
responsibility of by the entire community (including board and CCWG). There
is no need for hand washing in this process because all hands are
literarily dirty. There is however need to collectively agree that what
comes out is generally workable and practically takes up more steps further
in the community accountability process (including that of board, staff and
SO/AC)

Regards
> T
>
> The above hopefully does not telescope the outcome of the work of the
group.  I am likely known at this point as favoring the CMSM.  Nonetheless,
it has been reported to me that at Friday’s sessions, the Chairs were
observing that the group faces certain practical challenges.  If these
practical challenges “rule the day”, then I believe it would be best to
follow the above procedure in order to avoid certain difficulties that
could arise down the road after NTIA certification of the transition
proposal to Congress.
>
>
>
> Anne
>
>
>
> Anne E. Aikman-Scalese, Of Counsel
>
> Lewis Roca Rothgerber LLP
>
> One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611
>
> (T) 520.629.4428 | (F) 520.879.4725
>
> AAikman at lrrlaw.com | www.LRRLaw.com
>
>
>
>
>
>
>
> From: accountability-cross-community-bounces at icann.org [mailto:
accountability-cross-community-bounces at icann.org] On Behalf Of Jordan Carter
> Sent: Friday, October 16, 2015 2:48 PM
> To: Malcolm Hutty
> Cc: Accountability Cross Community
> Subject: Re: [CCWG-ACCT] For Enforcement Model small group on Saturday -
Tables & Plan B slides
>
>
>
> Same place as today all - and an 8.30am start
>
>
>
> Jordan
>
> On Friday, 16 October 2015, Malcolm Hutty <malcolm at linx.net> wrote:
>
> Thank you Jordan.
>
>
>
> Please could you (or staff, or someone) confirm start time (8:30?) and
particularly, which room for each meeting.
>
>
>
> Thank you.
>
> Sent from my iPhone
>
>
> On 16 Oct 2015, at 18:13, Jordan Carter <jordan at internetnz.net.nz> wrote:
>>
>> Hi everyone
>>
>>
>>
>> One of the small grounds meeting tomorrow is to deal with the
Enforcement Model.
>>
>>
>>
>> We anticipate the group will probably be asked to focus on testing the
two central models (Single Member and Single Designator) with a focus on
the two powers that attracted most discussion this morning. That is:
>>
>>
>>
>> - separation review outcomes
>>
>> - IRP
>>
>>
>>
>>
>>
>> The attached documents essentially include the output the lawyers were
tasked with with "Plan B", too. They are as follows:
>>
>>
>>
>> - summary table of enforcement issues under all four models (status quo,
MEM, Single Designator, Single Member)
>>
>>
>>
>> - the full detailed table of enforcement issues under all four models
>>
>>
>>
>> - a "three column" table that is the summary, just for Single Designator
and Single Member (the most useful working doc to look at)
>>
>>
>>
>> - a powerpoint set of slides that details other aspects of the "Plan B"
which is Single Designator plus a governance review.
>>
>>
>>
>>
>>
>>
>>
>> I encourage those interested in these issues to look at these documents,
whether or not you can or will attend the small group session.
>>
>>
>>
>>
>>
>> best,
>>
>> Jordan
>>
>>
>>
>> <Summary Comparison of Enforcement Mechanisms by Model - Final
(00723591x....pdf>
>>
>> <Comparison of Enforcement Mechanisms by Model- Final
(00723592xA3536).pdf>
>>
>> <3 COLUMN Summary Comparison of Enforcement Mechanisms (Sole Designator
&....pdf>
>>
>> <CCWG Slides--Community Powers with Opportunity for Future Governance
Rev....pdf>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
> --
> Jordan Carter
> Chief Executive, InternetNZ
>
> +64-21-442-649 | jordan at internetnz.net.nz
>
> Sent on the run, apologies for brevity
>
>
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