[CCWG-ACCT] Chris's summary of current thinking
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
Thu Sep 3 16:42:13 UTC 2015
Agree completely Malcolm, and apologies for my somewhat loose language.
But, as you say, there is a narrow range where we think the community and/or
the IRP should prevail. I read the board as rejecting that ...
Paul
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
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-----Original Message-----
From: Malcolm Hutty [mailto:malcolm at linx.net]
Sent: Thursday, September 3, 2015 12:26 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>;
'"Kleinwächter, Wolfgang"' <wolfgang.kleinwaechter at medienkomm.uni-halle.de>;
'Greg Shatan' <gregshatanipc at gmail.com>
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Chris's summary of current thinking
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/
>>
>> London Internet Exchange Ltd
>> 21-27 St Thomas Street, London SE1 9RY
>>
>> Company Registered in England No. 3137929
>> 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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