[CCWG-ACCT] MEM and enforceability

Tue Sep 22 13:31:14 UTC 2015

> We can 'resolve' that by accepting that mutual accountability is important but that in the end, separations of responsibilities and clear rules along with transparency are the best we, or any other governance system, can manage.

I disagree. Under the Board’s proposal there is a focussed point that can be ‘attacked' and put to arbitration and eventual judicial decision. Under the member model there is a gap because the same things cannot happen to the member. In the Board’s proposal the ultimate responsibility is the Board’s subject to binding arbitration and court enforcement. In the CCWG model the ultimate responsibility is the member but to whom are they accountable under the mission of ICANN that we must act in the global public interest.

Cheers,

Chris

> On 22 Sep 2015, at 23:22 , Jordan Carter <jordan at internetnz.net.nz> wrote:
> 
> Two entirely different issues. The issue of SO/AC accountability to the communities that organise through them is identified as one that is beyond Work Stream 1, because it is an enduring and ongoing iCANN issue.
> 
> If you'd like to promote that into WS1, could you tease out the logic a bit more?
> 
> Improvements or consideration of that question does not resolve the "who watches the watchers" matter implicit in the other point. We can 'resolve' that by accepting that mutual accountability is important but that in the end, separations of responsibilities and clear rules along with transparency are the best we, or any other governance system, can manage.
> 
> my tuppence!
> 
> J
> 
> 
> On 23 September 2015 at 01:00, Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au>> wrote:
>> If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved.
>> 
>> That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews?
> 
> Are those 2 statements not contradictory? Either we can resolve or we can’t. If we can’t then I believe that is a flaw in the plan and if we can resolve then I believe we should do so as part of our current work.
> 
> 
> Cheers,
> 
> Chris
> 
>> On 22 Sep 2015, at 22:52 , Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>> wrote:
>> 
>> Sam, as I just noted to Chris, the lawyers need to flesh that out. As a matter of principle, on the narrow scope of decisions the member is allocated in the CCWG's second draft proposal, complying with those decisions does not give rise to a breach of directors' fiduciary duties -- even if, in the absence of such a model (e.g. if there was no member and it was simply a "recommendation" from some kind of community group), it was held to do so. 
>> 
>> Chris: your latest just gets back to the endless chain of accountability discussion that we've come to now and again since the Istanbul meeting. 
>> 
>> To recap: given that the body being held to account (ICANN's Board) is shifting from a situation of external accountability (NTIA contract) to internal community accountability (through this system), the only option we have is for stakeholders organised in some way to fulfil that function, along with the mutual accountability that can arise from the Forum proposal.
>> 
>> Those people, the participants in the various SOs and ACs, are the people to whom ICANN needs to be accountable. They are the direct users and interested indirect users who choose to participate in this ICANN project.
>> 
>> If we go down an endless chain of "but who are *they* accountable to?" then we simply lock into an endlessly recursive argument that can never be resolved.
>> 
>> That doesn't mean SOs and ACs can't improve accountability - I believe we have specified that as a WS2 topic, and that it's natural fodder for ATRT reviews?
>> 
>> 
>> cheers!
>> Jordan
>> 
>> On 23 September 2015 at 00:43, Samantha Eisner <Samantha.Eisner at icann.org <mailto:Samantha.Eisner at icann.org>> wrote:
>> Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer?  As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.  
>> 
>> Thanks, 
>> 
>> Sam
>> 
>> From: <accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>> on behalf of Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>>
>> Date: Tuesday, September 22, 2015 at 5:15 AM
>> To: Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au>>
>> Cc: "Accountability Cross Community (accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>)" <accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>>
>> Subject: Re: [CCWG-ACCT] MEM and enforceability
>> 
>> Hi Chris, all:
>> 
>> The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.
>> 
>> On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no. 
>> 
>> On the third, that does seem a sensible time frame constraint...
>> 
>> best
>> Jordan
>> 
>> 
>> On 23 September 2015 at 00:06, Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au>> wrote:
>> Hello David,
>> 
>> I appreciate the constructive criticism 😀.
>> 
>> Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?
>> 
>> Cheers,
>>  
>> Chris 
>> 
>> On 22 Sep 2015, at 21:59, McAuley, David <dmcauley at verisign.com <mailto:dmcauley at verisign.com>> wrote:
>> 
>>> I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
>>> 
>>> However, I have, with respect, three critiques of it.
>>> 
>>>  
>>> 
>>> First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.
>>> 
>>>  
>>> 
>>> Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion. 
>>> 
>>>  
>>> 
>>> And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.  
>>> 
>>>  
>>> 
>>> David McAuley
>>> 
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>> 
>> 
>> -- 
>> Jordan Carter
>> 
>> Chief Executive 
>> InternetNZ
>> 
>> +64-4-495-2118 <tel:%2B64-4-495-2118> (office) | +64-21-442-649 <tel:%2B64-21-442-649> (mob)
>> Email: jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz> 
>> Skype: jordancarter
>> Web: www.internetnz.nz <http://www.internetnz.nz/> 
>> 
>> A better world through a better Internet 
>> 
>> 
>> 
>> 
>> -- 
>> Jordan Carter
>> 
>> Chief Executive 
>> InternetNZ
>> 
>> +64-4-495-2118 <tel:%2B64-4-495-2118> (office) | +64-21-442-649 <tel:%2B64-21-442-649> (mob)
>> Email: jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz> 
>> Skype: jordancarter
>> Web: www.internetnz.nz <http://www.internetnz.nz/> 
>> 
>> A better world through a better Internet 
>> 
> 
> 
> 
> 
> -- 
> Jordan Carter
> 
> Chief Executive 
> InternetNZ
> 
> +64-4-495-2118 (office) | +64-21-442-649 (mob)
> Email: jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz> 
> Skype: jordancarter
> Web: www.internetnz.nz <http://www.internetnz.nz/> 
> 
> A better world through a better Internet 
> 

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