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

Kavouss Arasteh kavouss.arasteh at gmail.com
Wed Sep 30 08:15:28 UTC 2015


Dear All,
I also  understood Fadi in LA  expressing a concern on how do we ensure
..in the single member model, that we have inclusion in consensus, rather
than allowing a subset of the community to exercise that power without the
Full acceptance of the community..and that can easily be construed as a
capture scenario that needs to be stress tested.
Let us take a scenario as follows
There is a potion to reject the Budget.
Petition is agreed ( not voted ) in the petition SO
Then it is discussed at Forum
Then put it for voting
SAS,RSSAC and very likely GAC do not participate in  voting
Very probably all 3 OCs participate in voting .
ALAC may or may not to do so
 if three OCs vote ,the super majority would be 2/3 thus out of 15 votes
currently foreseen 10 is enough to reset or ,at extreme, veto the budget .
Then out of 29 overall weighted /weighting votes 10 succeeded to veto the
budget and start an unnecessary process of back and fort of the Budget for
months
Is that a right process?
However, if we first establish a quorum for  decision making with fairly
high threshold ( 3/4 or  4/5 of the  7 SOs and ACs ) which means 5 SOs and
ACs or 4 SOs and ACs  are the minimum requirement of quorum to decide on
the matter .
Then we have to apply the super majority of votes which means 2/3 of 25 or
2/3 of 22 or 2/3 of 19 , depending on the SOs and ACs participating which
becomes  17, 14 and 12 votes out of 29 votes are sufficient to reject the
budget .This would result in a real capture of the community by a small
number of subset of that community.
Consequently, should we replace the voting by consensus then we are better
saved .
In view of the above the decision making process voting versus consensus
building needs to be seriously re-examined
Kavouss





2015-09-30 9:40 GMT+02:00 Jordan Carter <jordan at internetnz.net.nz>:

> Tapani: The approach I have suggested could work for none, any or all of
> the statutory powers. If it is worth exploring we can explore it. There
> might be some statutory rights that should not be subject to this approach,
> as Ed has argued.
>
> To address Kavouss' point: Kavouss, I agree with you this is unusual. I
> would not suggest this for any of the accountability powers we have
> suggested through the CCWG. I would only suggest it as a cast-iron,
> impossible-to-avoid, last-resort for powers that AREN'T about
> accountability. Dissolving ICANN, to pick the example repeatedly raised by
> Board members in LA, isn't an accountability issue. So let's not treat it
> as one.
>
> To put it another way: *some* of the powers of a Member in the law of
> California [or under any other law, should ICANN's jurisdiction change at
> some point] are clearly about accountability.
>
> *Some* of them aren't.
>
> The ones that *aren't* about accountability, the ones that pose some kind
> of risk to stability or that just aren't relevant, we can make impossible
> to use. We can make them even more impossible to use by including the Board
> as a participant for any decision to use them.
>
>
> All food for thought.
>
>
> best
> Jordan
>
> On 30 September 2015 at 19:36, Tapani Tarvainen <
> ncuc at tapani.tarvainen.info> wrote:
>
>> This is worrysome. While I can understand the concern about
>> things like dissolving the company, what's the issue with
>> document inspection?
>>
>> After all, transparency is one of the key elements of trust,
>> and trust is ultimately what will sustain or kill ICANN.
>>
>> Perhaps some of the lawyers among us could explain what
>> bad could result from document inspection power of the member?
>>
>> --
>> Tapani Tarvainen
>>
>> On Sep 29 20:48, Rudolph Daniel (rudi.daniel at gmail.com) wrote:
>>
>> > "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."
>> >
>> > Yes , interesting, I understood Fadi today expressing a concern (my
>> take on
>> > it)....how do we ensure ..in the single member model, that we have
>> > inclusion in consensus, rather than allowing a subset of the community
>> to
>> > exercise that power without the Full acceptance of the community..and
>> that
>> > can easily be construed as a capture scenario that needs to be stress
>> > tested.
>> >
>> > Interesting take on the problem Jordon, but as you suggest...over to the
>> > legal minds..
>> > RD
>> > On Sep 29, 2015 8:15 PM, "Jordan Carter" <jordan at internetnz.net.nz>
>> 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
>> > > Skype: jordancarter
>> > > Web: www.internetnz.nz
>> > >
>> > > *A better world through a better Internet *
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>
>
>
> --
> 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 *
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
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> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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>
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