[CCWG-ACCT] Summary of current Board sentiment

Mon Sep 28 15:25:49 UTC 2015

I don't expect that any significant research is required.

Sent with Good (www.good.com)

________________________________
From: Mathieu Weill
Sent: Monday, September 28, 2015 10:23:03 AM
To: Gregory, Holly
Cc: Seun Ojedeji; Chris Disspain; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Summary of current Board sentiment

Dear Holly,

As this is simply a matter of confirmation, please consider the request certified. Let us know if research is required please.

Best

Mathieu Weill
---------------
Depuis mon mobile, désolé pour le style

Le 28 sept. 2015 à 00:35, Gregory, Holly <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>> a écrit :

Once the question is certified to us, we are happy to reply.

HOLLY GREGORY
Partner

Sidley Austin LLP
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Seun Ojedeji
Sent: Sunday, September 27, 2015 4:39 PM
To: Chris Disspain
Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Summary of current Board sentiment

+1 this is helpful. Thanks Malcolm for rather focusing on how to achieve our collective goals and thanks Chris for directing the query accordingly. Will be good to read ccwg legal view on the point raised.

I hope the Co-Chairs "as per process" would direct this to the legal team.

Regards
Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 27 Sep 2015 12:12, "Chris Disspain" <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below.

Could I please ask Holly and Rosemary to confirm that Malcolm is correct in his understanding of the legal advice?

Cheers,

Chris

On 28 Sep 2015, at 05:06 , Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>> wrote:

Thank you Samantha, that is very helpful. I think it shows a route forward, if not necessarily an easy one.

The problem is this: as I understand the legal advice we have received from our own independent legal counsel, it is to disagree with your professional opinion as stated below. For what it's worth (very little I admit), neither do I know of any basis for a court to uphold a default judgment rendered by an arbitration panel against a party that had not agreed to enter arbitration.

But your assertion is still helpful in narrowing the issue. If it is indeed shown that you are correct,  and that it is clear that the Californian courts would indeed uphold an arbitration ruling notwithstanding that ICANN had refused to enter arbitration, then I will seriously reexamine my position (by which I mean, I do not now know any reason why under such circumstances I would not be prepared to accept MEM, or other proposals of such like). I do not make any great claims for myself, but if anyone should share my view or choose to be guided by my analysis, this could be a step forward.

I must, however, ask you: can you reciprocate? If it is shown that our advisors are right and you are not, and that accordingly the courts would not enforce a "default judgment" against ICANN by an arbitration panel unless it had previously agreed to enter arbitration through the IRP, will you similarly accept that only a membership based solution is acceptable?

Perhaps this is an unfair question: you are an employee and may not be authorised to make such a concession. I am an employee too, with limited authority, so I sympathise.  In which case, please consider the same question directed at any Board members who care to take it up.

Malcolm.

On 27 Sep 2015, at 20:27, Samantha Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>> wrote:

Hi Malcolm, I see your point below that "The MEM - another layer of
arbitration - would not give anyone the capability to force ICANN to enter
the IRP, because the Board could also
refuse to accept arbitration by the MEM.²

I¹m resending my response from 24 September on this same issue -

In the unlikely event that ICANN refuses to participate in the MEM, the
MEM arbitration would still take place and ICANN would suffer the
equivalent of a default judgment against it for not participating in the
MEM, and that declaration would be binding and enforceable.  If the Board
believes that an action should be insulated because of its fiduciary
duties, it can¹t avoid a negative finding on that because ICANN fails to
participate and defend itself.

Regards,

Sam

On 9/27/15, 2:14 AM, "accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> on
behalf of Malcolm Hutty" <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>
on behalf of malcolm at linx.net<mailto:malcolm at linx.net>> wrote:

On 2015-09-27 01:55, Stephen Deerhake wrote:

Thus it's my
contention that if the WG continues down this path, this project will
fail.  Maybe that's what some members of the WG want; I don't knowŠ

If backed into a corner, so be it. I challenge your implication that a
willingness to contemplate continuation of the status quo constitutes
bad faith.

There are many of us who approached this CCWG in good faith (and
invested huge
amounts of time and effort in trying to make it work) but who still have
"red lines" - minimum requirements without which they would prefer that
transition did not
proceed.

I count myself within that class. My own red line is that an aggrieved
registrant who
stands to lose their domain as a result of ICANN policy must have the
right to
challenge the legitimacy of that policy on the grounds that it is
outside ICANN's scope,
and that that challenge must be before a fair and objective independent
panel with
the power to quash the policy. We have made considerable progress toward
this goal.
So far, the panel, its independence, its decision-making standard and (I
think) its power,
have all been accepted. But as for the *right* to challenge, while the
Board says it
is willing to accept this in principle, it rejects the SMM, which is the
only mechanism we have found for
making the right to seek redress enforceable. By that I mean, the SMM is
the only mechanism
which could correct and force ICANN to enter into the IRP if, in a
particular case, it
refused to do so. The MEM - another layer of arbitration - would not
give anyone the
capability to force ICANN to enter the IRP, because the Board could also
refuse to accept
arbitration by the MEM.

This is a problem for me. I have no difficulty or embarrassment about
saying that I would
prefer that the entire transition failed than that it proceed without a
satisfactory resolution
of this point.

But my own red line is really very modest. Some may have more ambitious
demands, and
I don't think that that would be illegitimate. Consider how we began
this whole process.

The NTIA has exercised a historic stewardship of the DNS and a de facto
oversight of
ICANN. NTIA periodically imposes on ICANN a new contract, one that ICANN
simply cannot
reject. As a consequence, NTIA has the effective and enforceable powers
to initiate and
enforce change in ICANN. As a result of this special relationship NTIA
was in a position
to, and did in fact, effect change within ICANN that nobody else would
have been capable
of bringing  about.

When we began this process, NTIA declared that it wanted a proposal to
transition its historic
role to the global multistakeholder community. If some people
interpreted this as meaning
that the global multistakeholder community must gain an effective and
enforceable mechanism
to bring about change within ICANN, over the heads of a Board that
resisted that change,
I wouldn't think that would be an unreasonable reading of what was
offered.
Nor do I think it would be unreasonable for someone to conclude  that
the CCWG's proposal -
much less the  Board's counter-proposal - falls significantly short of
that ambition.
So if someone concluded that it was better to remain with the current
position where
at least /someone/ had the power to force ICANN to change (especially
since the NTIA's record
in this regard is known and benign) then I don't think it would be fair
to cast a person
with such a view as unreasonable or as some sort of saboteur.

But as I say, I am not myself demanding the full accountability of ICANN
and the complete
subordination of its institutional bureaucracy to the global
multistakeholder community.
If I can be certain that it can be contained within its defined scope, I
will be satisfied.
Sadly, as of today, I am not being offered even that much.

Kind Regards,

Malcolm.

--
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