[CCWG-ACCT] Your public comment re replacement of IANA provider

[Phil Corwin]

Bruce:

>>The independent review process (IRP) is itself a fundamental bylaw.   So the two become linked in that if the IRP is used to decide whether the Board has followed the bylaws, and the board does not follow the binding decision of the IRP panel (to the extent permitted by law) - then this would be a breach of the fundamental bylaw, and the MEM could be applied.<<

While I remain skeptical that the SMM creates advantages in regard to the (quite hypothetical) potential problems of capture and instability, and while the MEM is just as untested as the SMM, the IRP follow-up process as described seems unnecessarily inefficient, costly, and time-consuming. What you seem to be saying is that if the Board does not follow an IRP decision, then direct access to court enforcement would not exist and a MEM would have to be brought as an intermediary step to court enforcement (observing that in this way the MEM could be applied to non-Fundamental Bylaws as a kind of appeals mechanism).

Some questions:
-What is the rationale for having MEM apply as an initial accountability mechanism only to Fundamental Bylaws?
-Would the IRP in a post-transition world be advisory or binding upon the Board?
-Does Board's ability to refuse to comply with IRP or MEM based upon the law be limited to fiduciary duty considerations or is it potentially broader?

Even if those questions are answered to the satisfaction of the CCWG, it would appear that adoption of MEM would require a reappraisal of which Bylaws are deemed Fundamental, and a possible expansion of them, to avoid the two-step process you describe. That would of course be accompanied by the downside of making those additional Bylaws more difficult to amend in the future.

I look forward to your responses.

Very best, Philip

Philip S. Corwin, Founding Principal
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-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Bruce Tonkin
Sent: Friday, September 18, 2015 5:21 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider

Hello Alan,


>>  The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws. 

Yes the ICANN Board also agrees that the IRP still applies to all bylaws.   It can be used by individuals, companies or groups to bring actions.


>>  In the body of the Board comments, it says that the Board is proposing the MEM to allow the community ensure that ICANN is complying with its Articles of Incorporation and Bylaws. However, in the "Memo on Proposed Approach for Community Enforceability", it says that arbitration may be used only for violation of Fundamental Bylaws.

The MEM is fully funded and is brought by SOs and ACs, if there is a breach of fundamental bylaws,   In the case of the MEM - in addition to funding the cost of the standing panel, the ICANN also will pay the legal advice fees for the MEM issue group.   Much like ICANN is paying for the attorney fees for the CCWG today.

The independent review process (IRP) is itself a fundamental bylaw.   So the two become linked in that if the IRP is used to decide whether the Board has followed the bylaws, and the board does not follow the binding decision of the IRP panel (to the extent permitted by law) - then this would be a breach of the fundamental bylaw, and the MEM could be applied.

Regards,
Bruce Tonkin


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