[CCWG-ACCT] Chris's summary of current thinking

Malcolm Hutty malcolm at linx.net
Thu Sep 3 16:26:10 UTC 2015



On 03/09/2015 16:37, Paul Rosenzweig wrote:
> Dear Wolfgang
> 
> With respect we do not have a 90% agreement on substance.  To the contrary,
> I have read closely the Board's proposal and it is fundamentally at odds
> with the CCWG proposal,  Though couched as a modification, it is, in effect
> a rejection of the Single Member model of community control.  We are in
> agreement on relatively little, I fear since the single most vital question
> of all is in dispute -- viz., who controls in the event of disagreement.
> The Board says "the Board" and the Community says "the Community."

Dear Paul and Wolfgang,

I think "in the event of disagreement" is over-stating the CCWG's
ambition somewhat.

We aren't trying to assert that "the Community" should prevail in every
disagreement with the Board, only in a specific number of very narrow
classes of disagreement: the five powers. Powers which are all designed
to be used only in rare, exceptional cases.

We also think that an /independent adjudicator/ (not the Community)
should prevail in a disagreement over whether the Board has exceeded its
own powers, by acting in a manner inconsistent with the Bylaws.

This is much more narrow than "any disagreement". We have been very
careful to avoid creating anything that would interfere with the Board's
ordinary running of the company, or upset the bottom-up processes that
currently exist. These are *fallback* accountability safeguards only,
and we propose no changes to the day-to-day processes, mechanisms or
structures. It's very important to keep that in mind when evaluating
alarmist and unsubstantiated fears of "capture" or "paralysis".

Nonetheless, I do agree that failing to agree on these points would
indeed be fundamental. If the Board isn't willing to let the Community
prevail in those specific backstop cases, or to accept the authority of
the IRP to arbitrate complaints of contravention of the Bylaws, then we
do indeed have a serious problem.

"90% of the substance" is not measured by word count.

Malcolm.

> Paul
> 
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com 
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
> 
> 
> -----Original Message-----
> From: "Kleinwächter, Wolfgang"
> [mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de] 
> Sent: Thursday, September 3, 2015 10:14 AM
> To: Greg Shatan <gregshatanipc at gmail.com>; Malcolm Hutty <malcolm at linx.net>
> Cc: accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Chris's summary of current thinking
> 
> Hi Greg,
> 
> I think you frame the problem in a wrong way. In my eyes it is not "Board on
> Top" vs. "Member on Top". We have to find an innovative solution which
> balances the various interests in a non-hierarchical way which delivers a
> stable, secure and workable governance structure. We have 90 per cent
> agreement on substance. I have concerns with elements (unintended side
> effects) of the proposed mechanism which I raised in BA, Paris and in
> various telcos. But this concerns are based on my full agreement with the
> substantial part of the CCWG proposal.
> 
> Wolfgang
> 
>  
> 
> -----Ursprüngliche Nachricht-----
> Von: accountability-cross-community-bounces at icann.org im Auftrag von Greg
> Shatan
> Gesendet: Do 03.09.2015 13:48
> An: Malcolm Hutty
> Cc: accountability-cross-community at icann.org
> Betreff: Re: [CCWG-ACCT] Chris's summary of current thinking
>  
> I think the "nutshell" version of many of these suggestions (if they may be
> called that) is that the Board will not be told what to do by the Community.
> 
> Community "Powers" would be replaced by either the "right to arbitrate"
> (and thus attempt to convince a panel to accept the Community's position),
> the "right to consult" (and thus attempt to convince the Board to accept the
> Community's position) or the "right to reconsideration" (and thus attempt to
> convince the Board to accept the Community's position).
> 
> Thus, the balance (if it may be called that) of power remains largely
> unchanged.  "Board on Top" survives, and "Member on Top" (as membership
> organizations are constituted under US nonprofit law) is eliminated.  By
> repeatedly casting this as a discussion of "enforceability" this fundamental
> dichotomy was obscured (though Jordan among others did point it out).  In
> spite of that recasting, "enforceability" (i.e., going to court) under this
> model was never successfully demonstrated in spite of repeated request to do
> so (and in spite of repeated assertions by CCWG participants that
> enforceability could not be achieved without a "legal person").
> 
> I hope that a more detailed review reveals a more nuanced view, but that is
> my first reaction to the events of a few hours ago.
> 
> Greg
> 
> On Thu, Sep 3, 2015 at 5:02 AM, Malcolm Hutty <malcolm at linx.net> wrote:
> 
>> I regret that I was unable to make the Board call last night. I hope a 
>> recording and, ideally, transcript, will be made available soon.
>>
>> On 02/09/2015 23:47, Jordan Carter wrote:
>>> 2.      IRP Enhancements
>>>
>>> a.      Roll back modification of standard of review that was in place
>>> before 2013.
>>>
>>> b.      Commitment that revised standard of review, standing panel and
>>> procedural improvements will be part of next phase of work on IRP 
>>> enhancements.
>>
>>> [NOT MY AREA]
>>
>> I would read this as
>>
>> "* Reject CCWG proposals for IRP reforms
>> * Promise to come back to look at reforms to IRP after transition"
>>
>> Is that reading correct?
>>
>> If so, I would be very disappointed. This was identified from the 
>> start as THE core WS1 issue.
>>
>> If the Board is saying that the principles as to how the compatibility 
>> of their actions with the bylaws is adjudicated, to what standard, by 
>> whom, and whom can complain and thereby initiate such review, to say 
>> that all that should be left to WS2 is not something I can support.
>>
>>
>> --
>>             Malcolm Hutty | tel: +44 20 7645 3523
>>    Head of Public Affairs | Read the LINX Public Affairs blog  London 
>> Internet Exchange | http://publicaffairs.linx.net/
>>
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>>            21-27 St Thomas Street, London SE1 9RY
>>
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>>        Trinity Court, Trinity Street, Peterborough PE1 1DA
>>
>>
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> 
> 
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-- 
            Malcolm Hutty | tel: +44 20 7645 3523
   Head of Public Affairs | Read the LINX Public Affairs blog
 London Internet Exchange | http://publicaffairs.linx.net/

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           21-27 St Thomas Street, London SE1 9RY

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       Trinity Court, Trinity Street, Peterborough PE1 1DA





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