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

Wed Sep 30 08:22:06 UTC 2015

hi Kavouss, all

I would like to very clearly note that the people who raised the idea of
"dissolving the corporation" at the LA meeting who I heard were Chris
Disspain and George Sadowsky, both Board members.

I am not brainstorming here. The list of statutory powers relevant to the
CMSM were set out by our legal advisors in late July:

<
https://community.icann.org/pages/viewpage.action?pageId=52896826&preview=/52896826/56139270/Chart%20of%20Mandatory%20Statutory%20Member%20Rights%20Relevant%20to%20CMSM%20%2800700152xA3536%29.pdf
>

If we do have a membership model, I am confident we need bulletproof
clarity about how every single one of these powers would / could be
exercised, or locked away.

best
Jordan

On 30 September 2015 at 20:36, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> 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 *
>>>
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>
>

-- 
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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