[CCWG-ACCT] MEM and enforceability

[Cherine Chalaby]

> On 23 Sep 2015, at 23:08, Thomas Rickert <rickert at anwaelte.de> wrote:
> 
> All,
> I to not want to get into a legal argument, but want to offer an observation. There is a lot of talk about accountability of the community. This is important, no doubt about that. 
> 
> But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that. 

….and Thomas I would appreciate it if you could explain what happens next.   My  reading of the CCWG proposal is that if the community-empowerment mechanism does not like what the Board has done, it can remove the Board individually or collectively.  Hence, the new community empowerment mechanism in fact has the ultimate power to control the core activities of ICANN.  There will therefore be a de facto transfer of power in favour of the community without a corresponding transfer in accountability .   Do you disagree?  

Cherine

>  
> That means that you need a rogue Community trying to force the Board to do wrong things and - for the wrong things to be resolved - a rogue Board, too. 
> 
> I am adding this thought to the discussion as I get the impression that some think that the Single Member would replace the Board as a decision-making body.
> 
> Also, let us please remember that there will and must be consultation between the Board and the Community before decisions on the areas where the Community Powers are concerned, are taken. We should maybe think about making this element more visible as it lowers the risk of friction. 
>                               
> Also, let me add that we should not focus on Community vs Board accountability / responsiblity. It is a joint responsibility and mutual accountability is what we need.
> 
> Thomas
> 
> ---
> rickert.net <http://rickert.net/>
> 
> 
> Am 22.09.2015 um 16:32 schrieb Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au <mailto:Bruce.Tonkin at melbourneit.com.au>>:
> 
>> Hello Avri,
>> 
>> 
>>>> I think that the fiduciary responsibility does not change.  
>> 
>> Yes - that is my understanding of the role of a Board director in any model.   
>> 
>> Regards,
>> Bruce Tonkin
>> 
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