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

[Kavouss Arasteh]

It is surprising to hear that
Quote
"
*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 toexercise them?"*
Unquote
The above proposal is mixing the mandate of executive power with
legislative power in the sense that the Board will seat on the same boat as
the SOs and ACs and participate in voting relating to accountability of
ICANN This means that  ICANN  decides on accountability of itself.?
How people comes with such an strange idea>?
No .It does not work as it totally against the very principle of separation
of powers that we discussed and Mathieu put it in his Slides in CCWG Webinar
Regards
Kavouss

2015-09-30 8:44 GMT+02:00 Chartier, Mike S <mike.s.chartier at intel.com>:

> Agree.
>
> I think the level of consent ultimately reduces to whatever consent is
> needed to amend the bylaw, however.
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Steve
> DelBianco
> *Sent:* Tuesday, September 29, 2015 8:29 PM
> *To:* Jordan Carter; Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do
> Anything!' problem
>
>
>
> Good idea to start this thread, Jordan.
>
>
>
> I learned in Los Angeles that Jones Day had not noticed how CCWG proposed
> to restrict the single member’s ability to exercise some statutory powers
> (such as dissolving the corporation or forcing a new bylaw).
>
>
>
> So, first step is hear whether Jones Day now supports our notion of using
> bylaws to require an extraordinary level of consensus in the community
> before such powers could be used.
>
>
>
> I appreciate your idea of adding the Board to the other AC/SO community
> who would have to approve the Single Member exercising those extreme
> powers.
>
>
>
> But I think we should start by requiring unanimous consent of the ACs and
> SOs defined in ICANN bylaws.    Then, if Jones Day says THAT'S not enough,
> we could add the board too.
>
>
>
>
>
> *From: *<accountability-cross-community-bounces at icann.org> on behalf of
> Jordan Carter
> *Date: *Tuesday, September 29, 2015 at 8:15 PM
> *To: *Accountability Cross Community
> *Subject: *[CCWG-ACCT] A way to avoid the 'The Single Member Can Do
> Anything!' problem
>
>
>
> 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
> Skype: jordancarter
>
> Web: www.internetnz.nz
>
>
> *A better world through a better Internet *
>
>
>
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