[CCWG-ACCT] REVISED memo - TAKING STOCK OF EXISTING BOUNDARIES TO CCWG-ACCT WORK

Mon Sep 28 21:33:09 UTC 2015

Dear all,
Below I have pulled excerpts from the Revised Memo provided by Holly and Rosemary that I believe define some of the boundaries of the CCWG’s work moving forward:

From p. 4 at bottom:

·         Note that the CWG-Stewardship final transition proposal provides that the community powers with respect to the ICANN and IANA Budgets are key dependencies.  The CWG-Stewardship has acknowledged in its public comment that the community’s ability to veto the ICANN and IANA Budgets separately will meet the CWG-Stewardship requirements, and has stated that “[w]e believe that the CCWG-Accountability draft proposal on budgets is both necessary and sufficient to adequately satisfy these requirements of the CWG-Stewardship final transition proposal.”
From p. 6 at the bottom:

·         Note that the CWG-Stewardship final transition proposal requires that the ICANN multistakeholder community have the ability to appoint and remove members of the ICANN Board.
From p. 7 in the middle”

·         Note that the CWG-Stewardship final transition proposal requires that the ICANN multistakeholder community have the ability to recall the entire ICANN Board.

Also from the middle of p. 7

·         Note that the CWG-Stewardship final transition proposal requires that the ICANN multistakeholder community have the ability to exercise oversight with respect to key ICANN Board decisions (including with respect to the ICANN Board’s oversight of the IANA functions) by reviewing and approving:

o   ICANN Board decisions with respect to recommendations resulting from an IANA Function Review (IFR) or Special IFR; and

o   ICANN Board decisions with respect to the ICANN and IANA Budgets (discussed in subsection (b), above).

The following legal advice contained in the memo also helps recognize certain existing boundaries (comments in blue are my own):
P. 2 – middle –
Under the Board Proposal, the MEM process and the binding arbitration it provides would not be available for concerns about violations of Articles and standard Bylaws.  [MEM process only applies to Fundamental Bylaws]
p.2 – middle –
It appears that while any individual SO or AC, by consensus, could initiate a petition process to commence MEM arbitration, followed by notice to the other SOs and ACs, to initiate a MEM proceeding, the agreed number of SOs and/or ACs must each, by consensus, support the initiation of MEM arbitration.  [Board proposal requires FULL consensus of all SOs/ACs to initiate arbitration.]
Top of p. 4 regarding the Board’s proposed ByLaws changes in the context of continuing the current corporate structure and not changing to a Membership corporation:

·         As a legal matter, there is a level of uncertainty arising to doubt that Bylaw provisions providing these rights to the community as represented by the SOs and ACs would be legally cognizable, let alone enforceable, outside of a member context.   [referring to reconsideration/rejection of budget and Strategic Operating Plan – such Bylaws may be void or unenforceable if membership structure not chosen]
p. 4 – third bullet from the bottom

·         We note that the CCWG rejected an empowered designator approach because it could not provide enforceable community powers with respect to budget and strategy/operating plan veto for the very same reasons discussed above in relation to the Board Proposal.
p. 9 – middle bullet point

·         There is nothing about the Sole Member’s internal structure that requires use of a voting mechanism; governance and decision-making within a California unincorporated association is extremely flexible.  The Sole Member’s internal voting process could be replaced with the same approach to community decisions as in the Board Proposal.  This would provide the community with the same powers, and the same level of enforceability, as the CCWG Proposal.

Once again I note that I am not a California lawyer.  Just trying to distill the points made by counsel to the CCWG-ACCT that appear to me to set boundaries for our work given the current timetable.
Anne

[cid:image001.gif at 01D0F9F4.DC831920]

Anne E. Aikman-Scalese, Of Counsel

Lewis Roca Rothgerber LLP

One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611

(T) 520.629.4428 | (F) 520.879.4725

AAikman at lrrlaw.com<mailto:AAikman at lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/>

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Carlos Raul
Sent: Monday, September 28, 2015 12:55 PM
To: Drazek, Keith
Cc: ICANN-Adler; Thomas Rickert; Accountability Cross Community (accountability-cross-community at icann.org); Sidley ICANN CCWG (sidleyicannccwg at sidley.com); ccwg-accountability5 at icann.org
Subject: Re: [CCWG-ACCT] REVISED memo

+1 Keith!
On Sep 28, 2015 12:22 PM, "Drazek, Keith" <kdrazek at verisign.com<mailto:kdrazek at verisign.com>> wrote:
Thanks to Rosemary and Holly for this revised document.

I would very much welcome a comparison of Sole Member, Sole Designator and Board proposal, as described in the paragraph excerpted below:

“As discussed at length leading up to the CCWG’s decision to propose the Community Mechanism as Sole Member Model, a Sole Designator Model would provide an alternative that provides fairly robust community powers and enforceability though less than the Sole Member Model.  We are preparing at the request of the CCWG a PowerPoint comparison of the Community Mechanism as Sole Member Model, the Sole Designator Model and the Board Proposal.  Our initial assessment is that the Board Proposal -- due to lack of the legal rights that can attach to a member and a designator -- is closest to the current status quo and would deliver the least robust and enforceable community powers of the three models.”

If the Board views membership as unacceptable, and the community is willing and able to accept that membership is off the table, then the Sole Designator model is likely to be the best, most mutually acceptable compromise solution. If we can evaluate Sole Designator against our goals and on the spectrum of choices, it will help to inform our decision-making about next steps, the path forward, and the final proposal.

I look forward to seeing the assessment.

Regards,
Keith

From: accountability-cross-community-bounces at icann.org<mailto: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 Rosemary E. Fei
Sent: Saturday, September 26, 2015 6:27 PM
To: León Felipe Sánchez Ambía (leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>); Thomas Rickert; Mathieu Weill (Mathieu.Weill at afnic.fr<mailto:Mathieu.Weill at afnic.fr>)
Cc: Sidley ICANN CCWG (sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>); ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>; ICANN-Adler; Accountability Cross Community (accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>)
Subject: [CCWG-ACCT] REVISED memo

Dear Co-Chairs:

We have made some clarifying changes to the memo we sent earlier this week; a revised version is attached.

We would appreciate it if staff could post this in place of the prior version.

Thank you.

Rosemary and Holly

Rosemary E. Fei
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
415/421-7555 (phone)
415/421-0712 (fax)
rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>
www.adlercolvin.com<http://www.adlercolvin.com>

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