[CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

[Avri Doria]

Hi,

Interesting thought

One note,  I  have been given to understand that 5 members of the board
(majority of a quorum) could even dissolve ICANN.

Can this be confirmed?

avri

On 29-Sep-15 20:15, Jordan Carter wrote:
> Hi all
>
> One of the pieces of feedback from Board members I heard in L.A. was a
> concern that basically goes like this:
>
> "The Single Member is a problematic idea because of the incredible
> powers it has under California law - for instance, it could even
> dissolve ICANN!"
>
> There were some sub-themes to this concern:
>
> - the accountability of SO/AC actors in exercising the powers intended
> for the CMSM
> - the absence of fiduciary duties on the Single Member in making its
> decisions
> - the engineering principle of minimal change at a time
>
>
> Focusing on the overarching concern, it was a tenet of the CCWG's
> Second Draft Proposal that the CMSM should be largely ruled out from
> exercising any of the powers the community didn't propose it had. 
>
> That is, aside from the five community powers and the ability to
> enforce the bylaws against the Board, the other powers the California
> law grants to member/s (document inspection, dissolve the company,
> etc), should face such high thresholds to action that they can,
> practically speaking, never be actioned at all.
>
> [The Second Draft Proposal may not have been terribly clear about
> this, but that's what it was driving at.]
>
>
> So how to resolve this? The CCWG's choice of a Single Member
> (following its earlier choice of multiple members) was to meet the
> accountability requirements the community has asked for. But nobody
> asked for the community to have these other powers.
>
> *Here is a suggestion.*
> *
> *
> *For the exercise of any of the Member Powers the CMSM would have
> (beyond those we "want" it to have), why don't we include the ICANN
> Board as one of the groups that has to vote / come to consensus to
> exercise them?*
>
> This sounds a little strange on the face of it but think it through.
>
> This seems to me to be a very simple way to avoid the problem.
>
> It acknowledges that the rights of the Member are set out in law and
> can't be eroded - that they can only be managed by the decisions that
> member is able to take. And it acknowledges that the concerns about
> constraining the possible actions of the member to those that are
> intended, should be solved. It shares power in the model in quite a
> nice, dare-I-say-it, "multistakeholder" way.
>
> I'd welcome others' thoughts. I'd welcome views from our lawyers about
> this, too. On the face of it I can't see any reason this wouldn't work
> in law, since the CMSM can be comprised of any set of ICANN actors.
> But - I Am Not A Lawyer.
>
>
> cheers
> Jordan
>
> -- 
> 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
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>
> /A better world through a better Internet /
>
>
>
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