<html>
<body>
Steve:<br><br>
Not all Board decisions are related to policy or within the scope of
policy development processes or even the sole responsibility of an SO
(which is currently the only place that policy development occurs). Use
of the word "back" implies that is where all decisions start -
again not the case.<br><br>
I also would strongly argue against the inclusion of
"Constituencies". With an upper case C, they are the sole
construct of the GNSO, and with a lower case C the term is close to
meaningless. Also, it is a mechanism by which a SG could create
Constituencies and de facto increase their representation. <br><br>
I would argue for a methodology not unlike that used in the Stewardship
CWG and this CCWG, allocating a specific number of seats to each AC/SO
and allow then to sub-allocate as appropriate to their internal
structure.<br><br>
Alan<br><br>
At 07/01/2015 02:08 PM, Steve DelBianco wrote:<br><br>
<blockquote type=cite class=cite cite="">Some clarifications about the
Member concept, as described on the
<a href="https://community.icann.org/pages/viewpage.action?pageId=51416471">
Work Area 2 inventory</a>:
<dl>
<dd>Members are not outside of ICANN — they are designated by their
respective AAC/SO/Constituencies. So not sure there is much risk
that a majority of these Members could be captured.<br>
<dd>Members would be given only these enumerated powers:
<dl>
<dd>Appoint members of Affirmation Review teams
<dd>Review [and perhaps reverse] any board decision. Non-approval
would send decision back to bottom-up policy development process.
<dd>Approve proposed changes to ICANN Bylaws or Articles of
Incorporation.
<dd>Approve annual proposed budget <br>
<br><br>
</dl>
<dd>Members could not re-write contracts or budgets or
bylaws. If a bottom-up consensus process generated a bylaws
change that was rejected by the board, the Members could reverse that
decision, however.<br>
<br><br>
</dl>Steve DelBianco<br><br>
From: Greg Shatan
<<a href="mailto:gregshatanipc@gmail.com">gregshatanipc@gmail.com</a>
><br>
Date: Wednesday, January 7, 2015 at 12:45 PM<br>
Cc:
"<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>"
<<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>><br>
Subject: Re: [CCWG-Accountability] Regarding Non-profit and
public-benefit legal structure<br><br>
I would not rush to the conclusion that a membership group is per se
prone to capture. A poorly designed membership group, yes.
The devil is in the details -- who are the members? if they are
individuals, who do they represent? how do they act? when can they act,
and how quickly? how many of them are there? what are their powers? who
is excluded? are there classes of members? is voting weighted? <br><br>
Also, I'm not sure if (or why) the community accountability mechanism
needs to be "outside" (depending on what that means).
Members in a membership corporation are not really outside, unless I am
not getting the sense of the word as used here.<br><br>
As for the dispute resolution mechanism, that will depend on the other
two factors (among other things). If the members have the
"last word" on something, and the board fails to act, binding
arbitration (or litigation) would be a reasonable step (although some
escalation mechanisms might be appropriate before getting
there).<br><br>
Greg Shatan<br><br>
<br>
On Wed, Jan 7, 2015 at 10:37 AM, Paul Rosenzweig
<<a href="mailto:paul.rosenzweig@redbranchconsulting.com">
paul.rosenzweig@redbranchconsulting.com</a>> wrote:
<dl>
<dd>I think that the potential for capture of the outside member group is
the reason that the accountability system probably needs to be linked to
an independent judicial/arbitral function to resolve
disputes. [Of course that institution, too, could be captured
… but att some point we have to end the “who guards the guardians?”
question]. And that, in turn emphasizes why it is necessary as part
of the transition to define the Board’s/ICANN’s scope of
authority. A judicial/arbitral function can only resolve disputes
and cabin capture/abuse if it has an articulated standard against which
to measure the dispute. In the absence of such pre-existing
guidance the judiciary/arbiter is simply substituting his/her/its own
judgment for the Board and the Community, which is not a good
thing.<br><br>
<dd>Hence the bottom line: We need a) an outside accountability
mechanism representing the community; b) an independent dispute
resolution mechanism; and c) clearly articulated standards against which
to measure and resolve any dispute <br>
<dd>Paul<br>
<dd> <br>
<dd>From: Mathieu Weill
[<a href="mailto:mathieu.weill@afnic.fr" eudora="autourl">
mailto:mathieu.weill@afnic.fr</a>]
<dd>Sent: Wednesday, January 7, 2015 9:04 AM
<dd>To:
<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>
<dd>Subject: Re: [CCWG-Accountability] Regarding Non-profit and
public-benefit legal structure<br>
<dd> <br>
<dd>Dear Colleagues,<br>
<dd>Many thanks for this very valuable discussion. <br>
<dd>While it confirms that our initial orientation towards the ability
to, somehow, oversee the Board, is relevant and worth exploring, the
latest comments (regarding risk of capture) highlight that we should also
anticipate on the accountability of the overseeing mechanism itself.
<br>
<dd>If "the community" (through a mechanism yet to be
determined) oversees Board and staff, can we ensure all stakeholders,
especially those who are less familiar with Icann, that "the
community", in turn, is accountable (ie has the relevant independent
checks and balances, review and redress mechanisms) ? A significant
challenge, but I'm confident our group can address that. <br>
<dd>This aspect might, however, need to be addressed in our definition of
WS1, if there is agreement that is a necessary element for the transition
to take place. <br>
<dd>Best,
<dd>Mathieu<br>
<br>
<br><br>
<dd>Le 07/01/2015 09:07, Dr Eberhard W Lisse a Ă©crit :<br><br>
<dl>
<dd>I am not interested much in the details, interesting as they are
:-)-O, but would like to pick up on Bruce's last paragraph, because
in my view, the "membership supervision" is not going to help
much as it is prone to capture, quite the opposite of the accountability
we want.<br>
<dd> <br>
<dd>greetings, el<br>
<br>
<dd>Sent from Dr Lisse's iPad mini<br>
<br>
<dd>On Jan 7, 2015, at 02:40, Greg Shatan
<<a href="mailto:gregshatanipc@gmail.com">gregshatanipc@gmail.com</a>
> wrote:<br><br>
<dl>
<dd>What Bruce has set forth is close to correct. However, I can't
help but do a little legal nit-picking. <br>
<dd> <br>
<dd>"Public benefit corporation" is a term used in California
(among other places) as a term for non-profit corporations
generally. (In New York State, we use the term "not-for-profit
corporation" to mean basically the same thing as a California
"public benefit corporation" (and we use the term "public
benefit corporation" to mean something quite different -- a
quasi-public corporation like the Metropolitan Transport
Authority).) California public benefit corporations are not really
"chartered by the state" (though New York ones like the MTA are
chartered by the state). [Wikipedia isn't always a great
source....]<br>
<dd> <br>
<dd>In California, public benefit corporations may be created with or
without members, or may convert from member to non-member and vice
versa. However, a public benefit corporation with members is still
a public benefit corporation. <br>
<dd>(California also has "mutual benefit corporations" which
are non-profit but never charitable (and are also not tax-exempt).
Mutual benefit corporations are run for the benefit of their members, and
not for the benefit of the general public.)<br>
<dd> <br>
<dd>The term "member" can also be used to mean people (or
organizations) who aren't really members. For instance, when you
become a "member" of a museum, you are not becoming a member of
the corporation (i.e., what some in ICANN-land have termed a
"statutory member"). These non-statutory
"memberships" are more for marketing purposes and have no
governance role. "Statutory members" on the other hand,
have a role in governance (which can vary markedly depending on the
by-laws of the particular corporation.<br><br>
<dd> <br>
<dd>Hope this helps.<br>
<dd> <br>
<dd> <br>
<dd>Best regards,<br>
<dd> <br>
<dd>Greg Shatan<br>
<dd>(Speaking for myself, and not giving legal advice as I am not a
member of the California Bar)<br>
<dd> <br>
<dd>On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin
<<a href="mailto:Bruce.Tonkin@melbourneit.com.au">
Bruce.Tonkin@melbourneit.com.au</a>> wrote:<br><br>
<dl>
<dd>Hello Phil,<br>
<br>
<dd>>> I would envisage the Board having to be
compliance with all Corporate Governance Codes specific to Companies Law
in the country of incorporation, subject to a community consensus
override. But what is its corporate status - not for profit or for profit
- as different codes would apply ?<br>
<dd>The legal status of ICANN is as specified in its articles of
incorporation:<br><br>
<dd>
<a href="https://www.icann.org/resources/pages/articles-2012-02-25-en">
https://www.icann.org/resources/pages/articles-2012-02-25-en</a><br>
<dd>"This Corporation is a non-profit public benefit corporation and
is not organized for the private gain of any person. It is organized
under the California Non-profit Public Benefit Corporation Law for
charitable and public purposes. The Corporation is organized, and will be
operated, exclusively for charitable, educational, and scientific
purposes within the meaning of § 501 (c)(3) of the Internal Revenue Code
of 1986, as amended (the "Code"), or the corresponding
provision of any future United States tax code. Any reference in these
Articles to the Code shall include the corresponding provisions of any
further United States tax code."<br>
<dd>Also from:<br><br>
<dd>
<a href="http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation">
http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation</a><br>
<dd>"A public-benefit non-profit corporation is a type of
non-profit corporation chartered by a state government, and organized
primarily or exclusively for social, educational, recreational or
charitable purposes by like-minded citizens. Public-benefit
nonprofit corporations are distinct in the law from mutual-benefit
nonprofit corporations in that they are organized for the general public
benefit, rather than for the interest of its members."<br>
<dd>I believe it was deliberately set up as public benefit rather than a
member organization - to avoid the situation where the members become
limited to say gTLD registries and registrars and hence it ends up
operating primarily for the benefit of the domain name registration
industry.<br>
<dd>Any move away from a public-benefit corporation to a membership
corporation - would need to carefully consider how to ensure that the
members are reflective of the broader Internet community and don't become
limited to a few members as interest in "ICANN" drops over
time. I.e. a failure scenario of membership organisation is
what happens to the membership base over time and how it can be protected
from capture. I have seen some membership based ccTLDs get into
problems when their membership becomes dominated by domain name investors
for example.<br>
<dd>Regards,
<dd>Bruce Tonkin
<dd>_______________________________________________
<dd>Accountability-Cross-Community mailing list
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
<br><br>
</dl>
<dd> <br>
<dd>_______________________________________________
<dd>Accountability-Cross-Community mailing list
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
<br>
<br>
<br>
<br><br>
</dl>
<dd><pre>_______________________________________________</pre><br>
<br>
<br><br>
<dd><pre>Accountability-Cross-Community mailing list</pre><br>
<br>
<br><br>
<dd><pre><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a></pre><br>
<br>
<br><br>
<dd><pre>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</pre><br>
<br>
<br>
</dl>
<dd><pre>-- </pre><br>
<br>
<br><br>
<dd><pre>*****************************</pre><br>
<br>
<br><br>
<dd><pre>Mathieu WEILL</pre><br>
<br>
<br><br>
<dd><pre>AFNIC - directeur général</pre><br>
<br>
<br><br>
<dd><pre>TĂ©l: <a href="tel:%2B33%201%2039%2030%2083%2006">+33 1 39 30 83
06</a></pre><br>
<br>
<br><br>
<dd><pre><a href="mailto:mathieu.weill@afnic.fr">
mathieu.weill@afnic.fr</a></pre><br>
<br>
<br><br>
<dd><pre>Twitter : @mathieuweill</pre><br>
<br>
<br><br>
<dd><pre>*****************************</pre><br>
<br>
<dd>_______________________________________________
<dd>Accountability-Cross-Community mailing list
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
<br><br>
</dl><br>
_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
Accountability-Cross-Community@icann.org<br>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</blockquote></body>
</html>