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

[Bruce Tonkin]

Hello Phil,

>>   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 

Well firstly I think it is highly unlikely that the board would not follow an IRP decision.

Speaking personally I don't see why you couldn't go to court enforcement for a binding IRP decision.

>>  -What is the rationale for having MEM apply as an initial accountability mechanism only to Fundamental Bylaws?

I think the rationale was to create something purpose built for the broader community to dispute a decision by the Board.   The rules of this mechanism could be adjusted over time to suit the community situation, compared to the situation of a single company.   In some cases companies may use the dispute process simply to create a delay and a commercial advantage - so the rules for disputes could be different for the community versus single companies.   The assumption I guess was that it would most likely be fundamental bylaws that would result in the community as a whole wanting to go to dispute resolution.



>>  -Would the IRP in a post-transition world be advisory or binding upon the Board?

Yes it would be binding as per the CCWG proposal.    See our response in section 14 of the matrix.   As noted earlier the Board is broadly supportive of the improvements to the IRP.

>>  -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?

Well I am not a lawyer - but I would assume it includes fiduciary duty considerations as well as that we need to comply with the law.   The CCWG proposal had the language "to the extent permitted by law", and the Board agreed - so I assume that language came from the CCWG's legal counsel.     Can you give an example of a situation where the community would want ICANN to breach the law?

Regards,
Bruce Tonkin