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

Kavouss Arasteh kavouss.arasteh at gmail.com
Wed Sep 30 07:36:29 UTC 2015


Dear All,
Every day , a new novel idea such as
Quote
*"Aside from the five( SIX OR SEVEN ???)  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 dissolution of the company is a new brand and novel idea which strikes
a lot. What we intend to do ? to increase and increase the Community power
for which we have serious difficulties on how to exercise that power?
This is a disturbing bream storming?
Kavouss

Unquote


2015-09-30 9:29 GMT+02:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:

> 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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>>
>>
>
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