[CCWG-ACCT] Regarding the Board's Comments and It's Obligations

[Dr Eberhard W Lisse]

Exactly.

My first thought was, why is she not the CCWG-Accountability's
(paid) legal adviser?

Great stuff, even if a little mild on the Board :-)-O

el

On 2015-09-09 22:00, Avri Doria wrote:
> Hi,
> 
> Thanks for this.
> 
> avri
> 
> 
> On 09-Sep-15 15:13, Aikman-Scalese, Anne wrote:
>>
>> Steve, Greg, et al,
>>
>>  
>>
>> Considering all that has been said, I harken back to Dr.
>> Crocker’s comment in last week’s call.  He said, very
>> accurately, in my opinion, that the CCWG proposal leans toward
>> changing the Board from a “Board of a Directors to a body of
>> elected representatives.” I believe that it is the nature of
>> this particular proposed change that is driving the bulk of the
>> Board’s resistance to the Community Mechanism Sole Member
>> structure.  My perspective (having only been involved since 2010)
>> on this change in roles is as follows:
>>
>>  
>>
>> 1.  It seems to me that in many situations, the Board has stated
>> that it does not make policy and does not want to make policy,
>> but rather that the Community makes policy and that this is the
>> beauty of the Multi-Stakeholder Model.
>>
>>  
>>
>> 2.  Based on my limited 5 year experience as well as active
>> participation in the GNSO Policy & Implementation Working Group
>> where we studied various examples of policy-making prior to
>> making our recommendations, I have observed that the Board does
>> in fact make policy and it especially does so when constituencies
>> and stakeholders cannot agree on what the final policy should be.
>> (I apologize for coming “late to the party”, but this was due
>> to active participation in the Policy & Implementation Working
>> Group.)
>>
>>  
>>
>>  
>>
>> 3.  The Board receives policy advice from the GNSO, the GAC,
>> ALAC, and others.  The advice received by the Board is not even
>> limited to advice received from the Community.  It may in fact
>> receive advice from individual governments or entities such as
>> the European Commission.  In many situations, the desire to move
>> forward even in light of strong differences of opinion has
>> resulted in Board policy being made where the Community has not
>> reached consensus.  In this regard, individual Board members have
>> also been put in the position of assessing various risks – e.g.
>> the risk of a transfer of authority to some other entity.
>>
>> 4.  Further evidence that the Board makes policy comes in the
>> form of the creation of the New gTLD Program Committee, which was
>> required to be free of conflicts of interest precisely because it
>> was known they would make policy when making decisions.  In this
>> regard, the NGPC was delegated full Board authority.
>>
>>  
>>
>>  
>>
>> 5.  In its Accountability proposal, the CCWG-ACCT seeks to
>> establish a structure which is much more in line with the
>> Board’s stated desire not to make policy.  It brings the
>> stakeholders together in a forum that provides for voting and
>> exercise of powers if the Board does not execute policy as the
>> Sole Member believes it was intended to be executed.
>>
>>  
>>
>> 6.  The proposed structure also appears to be designed to avoid
>> undue government influence, but I have not heard anyone on the
>> GAC say they are willing to change the current status of GAC
>> advice under the By-Laws.
>>
>>  
>>
>> 7.  A possible difficulty with the proposed structure is that
>> bringing together the Community in the form of the Community
>> Mechanism Sole Member does not necessarily mean that there will
>> be agreement among stakeholders with respect to establishing and
>> executing policy.
>>
>>  
>>
>> 8.  Under the current structure, the Board resolves differences
>> among stakeholder groups by making judgments based on input
>> received from all those who provide input.  It is essentially
>> this function which I think the Board is reluctant to relinquish
>> to the voting structure of the Sole Member.  The directors are
>> qualified and experienced professionals who believe they serve on
>> the Board for the purpose of exercising their best independent
>> professional judgment in matters of concern to the Community and
>> the world with respect to the functioning of the Internet.
>>
>>  
>>
>> 9.  It therefore gives Board members great pause when they see
>> that even in the best exercise of their independent professional
>> judgment, they are subject to recall via the Sole Member
>> structure and their view may be that this recall could, under
>> certain circumstances, be unfounded.
>>
>>  
>>
>> 10.  Greg clarified this issue when he said there is a difference
>> between a Board that serves a non-profit MEMBERSHIP corporation
>> (proposed structure) and a Board that serves a non-profit
>> corporation (current structure).  However, the Community has been
>> complaining that the Board serves the corporation itself (as it
>> is bound to do) and not the Community and that this is precisely
>> why important Accountability measures are in order prior to the
>> IANA transition.
>>
>>  
>>
>> 11.  We may be learning that despite a public stance previously
>> taken that the Board does not make policy because the Community
>> makes policy, the Board in fact is most valuable to the Community
>> in its role of resolving differences when the Community is unable
>> to resolve those differences itself.
>>
>>  
>>
>> 12.  We are very definitely at a “fork in the road” with
>> respect to the role of the ICANN Board of Directors.  It is
>> particularly important that everyone be extremely candid about
>> this.  I personally would anticipate that if the recommendations
>> of the CCWG-ACCT are adopted, the composition of the Board and
>> the type of Board members being sought (and willing to serve) may
>> well be different from the individuals previously recruited and
>> currently serving.
>>
>>  
>>
>> 13.  Having said all of the above, I continue to support the CCWG
>> – ACCT Community Mechanism Sole Member proposal – precisely
>> because it is actually a closer reflection of what everyone has
>> been saying is SUPPOSED to happen in the unique and proper
>> functioning of the Multi-Stakeholder Model.  If we really believe
>> in this MS Model and believe that it actually works, we should be
>> ready to adopt the Community Mechanism Sole Member structure.
>>
>>  
>>
>>  
>>
>> 14.  On the topic of potential undue government influence and the
>> NTIA view of such influence, the GAC has not yet said it will
>> participate in the Sole Member with a voting role.  If I were
>> representing a GAC government, I would have serious concerns
>> about this level of participation as it appears to me it
>> represents a conscious choice to submit to the jurisdiction of
>> the California courts and statutes – or at least arguably so
>> since the Sole Member is the sole member of a California
>> non-profit unincorporated association.  (In this regard, I still
>> did not receive an answer with respect to my question regarding
>> the applicability of CA Corporations Code Section 18630 which
>> provides as follows: “Notwithstanding any other provision of
>> this chapter, a member or person in control of a nonprofit
>> association may be subject to liability for a debt, obligation,
>> or liability of the association under common law principles
>> governing alter ego liability of shareholders of a corporation,
>> taking into account the differences between a nonprofit
>> association and a corporation.” )
>>
>>  
>>
>> 15.  Because of the recommended formalization of the Sole Member
>> structure, I believe the Sole Member should have a separate
>> budget for enforcement of its member rights under the California
>> statutes.  Further, I believe individual directors should agree,
>> upon taking office, not to sue the Sole Member.
>>
>>  
>>
>> 16.  If the Board continues in its current role with respect to
>> resolving differences and making policy, I think there is
>> actually a higher risk that the control of the Internet and the
>> IANA functions could be subject to undue government influence.
>> (Witness .africa?)  Nonetheless, I do personally believe that GAC
>> Advice should continue to have special status under the By-Laws,
>> whether or not the GAC participates in active voting in the Sole
>> Member.  The GAC has essentially been the only influence with any
>> “teeth” in the direction of consumer protection in the
>> launching of new gTLDs and that consumer protection is absolutely
>> critical to promoting trust in the worldwide web long term.
>>
>>  
>>
>>  
>>
>> 17.  With respect to the Board’s recommended use of binding
>> arbitration as a dispute resolution mechanism, this bears
>> discussing with the Community as a whole in the Face to Face
>> meeting.  However, it is unquestionable that in practice,
>> arbitration can take a very long time and especially in relation
>> to both sides settling on an arbitrator or arbitrators and
>> waiting for availability of particular arbitrators who may be
>> qualified to arbitrate disputes in this highly specialized arena.
>> Further, not all arbitration rules allow for issuance of
>> injunctive relief.  The availability of expedited injunctive
>> relief in court would seem absolutely critical to the process of
>> enforcement by the Sole Member of Community powers.  In the
>> private sector, we often conclude agreements which provide for
>> arbitration but do not prohibit seeking injunctive relief pending
>> such arbitration decisions.
>>
>>  
>>
>> I apologize in advance for any statements made out of lack of
>> knowledge or experience.  So far in my ICANN education and
>> orientation, it seems that the only way to contribute and to
>> learn as a relative newcomer is to jump in with both feet and be
>> prepared to be embarrassed by someone.
>>
>>  
>>
>> I support discussing the Board’s concerns in a face-to-face
>> meeting of the CCWG-ACCT in Los Angeles September 25 and 26.  I
>> also agree with those who have observed that this meeting should
>> be set in the very near future.
>>
>>  
>>
>> Anne
>>
>>  
>>
>> **
>>
>> 	
>>
>> *Anne E. Aikman-Scalese, Of Counsel*
>>
>> *Lewis Roca Rothgerber LLP | *
[...]
-- 
Dr. Eberhard W. Lisse  \        / Obstetrician & Gynaecologist (Saar)
el at lisse.NA            / *     |   Telephone: +264 81 124 6733 (cell)
PO Box 8421             \     /
Bachbrecht, Namibia     ;____/