<p dir="ltr">Interesting, even in membership organization pre-approval of non-policy decision of the board (except bylaw changes) by the community is a feature that is not practiced. <br>
I think it's important to watch the pre-approval power, I am all for "reversing power" but not making execution of budget for instance to be subject to community approval, that would definitely not create a progressive and sustainable ICANN post transition.</p>
<p dir="ltr">Again I think we may be getting too carried away with "power" and not considering it's implications in the ICANN context.</p>
<p dir="ltr">Regards</p>
<p dir="ltr">Sent from Google nexus 4<br>
kindly excuse brevity and typos.</p>
<div class="gmail_quote">On 7 Jul 2015 4:59 pm, "Robin Gross" <<a href="mailto:robin@ipjustice.org">robin@ipjustice.org</a>> wrote:<br type="attribution"><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div style="word-wrap:break-word"><div>It is worth exploring the extent to which pre-approval processes can be baked into ICANN's bylaws that con provide an acceptable level of assurance that the board and the community are on the same page on those two issues. I do not think we only need to explore rejection rights by the community on these two issues, but rather, we should also explore community pre-approval powers, and how far we can get with those under an Empowered Designator model.</div><div><br></div><div>This is similar to how GTLD policy is supposed to be made under ICANN's existing bylaws. ICANN's existing bylaws provide that the policy is first approved by the GNSO Council before it is passed up to the board for final approval and adoption. The board can disregard the GNSO's approved plan, ONLY provided they follow a process laid out in the bylaws that requires a consultation and negotiation and working together to try to find mutual agreement. The problem we have today is that the bylaws are not enforceable against the board, so when the board violates this process, there isn't anything we can really do about it. But since we are creating the community power to enforce the bylaws, we would be able to require the ICANN board to abide by this bylaws process under the new and improved ICANN for budget and strat plan final decisions.</div><div><br></div><div>This isn't a revolutionary idea, but rather bakes a community pre-approval process into the bylaws, which will have teeth. And it is only for these two more challenging rights, budget and strategic plan under empowered designator, where we need to consider using such a mechanism. At the end of the day, we'd get to the same place: board and community in agreement on these two important issues, but perhaps without all the upheaval and concern that membership model instills. Holly said on the call there isn't any reason we couldn't do it this way. So let's explore it and see if it gets us where we need to go.</div><div><br></div><div>Thanks,</div><div>Robin</div><br><div><div>On Jul 7, 2015, at 6:46 AM, Alan Greenberg wrote:</div><br><blockquote type="cite">
<div>
Cherine, My understanding is that the designator model does not allow for
budget approval, and if I am correct, #2 only applies to
membership.<br><br>
Alan<br><br>
At 07/07/2015 02:45 AM, Cherine Chalaby wrote:<br>
<blockquote type="cite">Dear Mathieu and the CCWG
group,<br><br>
In Buenos Aires, I attended most of the sessions on the CCWG proposal and
made several comments. I wish to share these comments in
writing with you and the accountability-cross-community group as you
prepare for the F2F meeting in Paris. As I said in
Buenos Aires, please do not take my comments as fierce criticism but more
as constructive suggestions. <br><br>
Let me start by saying that as a Director of the Board, I believe in (a)
appropriate empowerment of the community within the multi-stakeholder
model, (b) strengthening of the the bottom-up process, and (c)
enhancing accountability without destabilising the security and stability
of ICANN or introducing opportunities for capture.<br><br>
In my personal capacity as a member of the community, I support the CWG
proposal, but I have concerns that the CCWG draft proposal, discussed in
Buenos Aires, could lead to three unintended consequences that
could seriously damage ICANN in the long run. These unintended
consequences apply to both the Membership model as well as the Designator
(Hybrid) model. <br><br>
<b><u>Unintended Consequence 1: Weakening ICANN's Governance
model<br>
</u></b><br>
The CCWG has asserted that the ╲empowered community╡ will have
control over the Board in the following areas: Strategic Plan, Operating
Plan, Budget and Bylaws changes, fundamental or not. As a
consequence, there will be no decision that the Board can make in those
core fiduciary responsibilities that cannot be rejected or stopped by the
proposed new community-empowerment mechanism.<br><br>
The CCWG draft proposal indicates that the Board would always have the
ability to exercise its own judgment after the community-empowerment
mechanism makes its decisions. But the proposal also states that if
the community-empowrment mechanism does not like what the Board has done,
it can remove the Board individually or collectively. Hence, the
new community-empowerment mechanism in fact has the ultimate power to
control the activities of ICANN. While as a community member
who believes in the bottom-up model, I support the principles behind this
objective, I believe it is vitally important that these newly transferred
powers are paired with the transfer of corresponding
accountability. The CCWG proposal in effect creates two bodies ˆ
one that is empowered (the community) and a separaate one that is
accountable (the Board). This, in my view, breaches a fundamental
principle of governance, weakens the overall structure of ICANN, and is
not sustainable. <br>
<b><u>Unintended Consequence 2: Threatening ICANN's financial
stability <br>
</u></b><br>
The CCWG draft proposal gives the community the right to reject the Board
approved budget. I have not yet seen proposed mechanisms to prevent
the following from happening: <br><br>
(a) Budget paralysis, whereby members of the community will vote against
each other rather than be accountable to each other. For example,
given budget limitations, what will stop members from voting against
funding projects that do not facilitate their personal
interest. This could lead to a situation where the budget is
never adopted or takes too long to adopt, therefore jeopardising
ICANNâ•˙s ability to deliver on key commitments such as contractual
compliance enforcement , including issues relating to enhanced consumer
protections and enhanced IP and rights protections, and other initiatives
important to the community. This budget paralysis could also
risk the stable and continued funding of the IANA functions. That
is why I suggested in Buenos Aires that a commitment to fund the IANA
functions should be separated from this budgetary process and embodied in
the ICANN Bylaws.<br><br>
(b) Threat to the stability of the business environment in which many
have invested and rely on ICANNâ•˙s ability to maintain, as under
the new proposal, members of the community will have the right to reject
the budget, but not a single member of the community will be accountable
for the budget bottom line. <br><br>
(c) Unfairness, where the financial needs of the minority will seldom be
fulfilled because final budget decisions will be made as a result
of a majority voting by members of the community who do not have an
obligation to act in the collective interest of all
stakeholders.<br><br>
it is worth noting that the current budget process is robust and
transparent and ensures that none of the above consequences can occur. It
also ensures community participation and it can always be improved. <br>
<b><u>Unintended Consequence 3: Dysfunctional Board<br>
</u></b><br>
The CCWG draft proposal gives the community the right to remove an
individual board member. The CCWG proposed mechanism for
implementing this right will in my view lead to the creation of two
classes of board members. Those that will act in sole the
interest of the SO/AC that has elected them, and the others who will be
free to act in the collective interest of all stakeholders. The
threat of removal without significant justification runs the risk of
having individual Board members fear the loss of their seats if they do
not adhere to the wishes of the constituency from which they come.
This could turn the Board into a representative body, or a parliament,
i.e. a place where opposing interests clash and are reconciled, rather
than the present situation in which all Board members are obligated to
act as a body in the best interests of the overall organization.<br><br>
Furthermore, Board deliberations and decisions would be at risk of
being driven to a large extent by subjective goals and personal
compromise.<br><br>
<br>
I do not have concrete suggestions to prevent these unintended
consequences from happening, but I sincerely hope that the CCWG takes my
concerns into account when it prepares its 2nd draft proposal at its F2F
meeting in Paris. <br><br>
Thank you for listening.<br><br>
Regards<br>
Cherine Chalaby<br><br>
<br><br>
<br>
<blockquote type="cite">On 6 Jul 2015, at 22:10, Mathieu
Weill
<<a href="mailto:mathieu.weill@afnic.fr" target="_blank">mathieu.weill@afnic.fr</a>
> wrote:<br><br>
Dear Colleagues,<br><br>
In anticipation of our call tomorrow, here are a few points outlining the
current thinking about the face to face in Paris.<br><br>
Goal of the meeting :<br>
2 weeks before the publication of our second (and hopefully last) WS1
public comment the overarching goal will be to find the common views that
will be detailed in our 2nd draft proposals. The expected outcome of the
meeting is that we find common ground on most of, if not all the open
discussions.<br><br>
Agenda of the meeting :<br>
Our plans are to work 8.30-18.00 local time (CEST, UTC+2), with lunch
break from 12.00 to 13.00.<br><br>
Our plan is to define a topic based agenda, including :<br>
- WP3 proposals (emerging issues)<br>
- Community mechanism model (including thorough Q&A with
lawyers)<br>
- modalities of of community mechanisms<br>
- Removal / recall Board members refinements<br>
- Government input related discussions (the BA GAC communiqué announced
upcoming contributions before Paris)<br>
- IRP refinements<br>
<br>
We might have to plan sessions on the most difficult topics on day 1 and
on day 2 to enable consensus building.<br><br>
Please let us know either on list or during the call tomorrow if you have
specific suggestions or feedbacks regarding this plan for the
meeting.<br><br>
Best regards,<br><br>
-- <br>
*****************************<br>
Mathieu WEILL<br>
AFNIC - directeur général<br>
Tél: <a href="tel:%2B33%201%2039%2030%2083%2006" value="+33139308306" target="_blank">+33 1 39 30 83 06</a><br>
<a href="mailto:mathieu.weill@afnic.fr" target="_blank">mathieu.weill@afnic.fr</a><br>
Twitter : @mathieuweill<br>
*****************************<br><br>
_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
<a href="mailto:Accountability-Cross-Community@icann.org" target="_blank">Accountability-Cross-Community@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" target="_blank">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</blockquote><br>
_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
<a href="mailto:Accountability-Cross-Community@icann.org" target="_blank">Accountability-Cross-Community@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" target="_blank">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</blockquote></div>
_______________________________________________<br>Accountability-Cross-Community mailing list<br><a href="mailto:Accountability-Cross-Community@icann.org" target="_blank">Accountability-Cross-Community@icann.org</a><br><a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" target="_blank">https://mm.icann.org/mailman/listinfo/accountability-cross-community</a><br></blockquote></div><br></div><br>_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
<a href="mailto:Accountability-Cross-Community@icann.org">Accountability-Cross-Community@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" rel="noreferrer" target="_blank">https://mm.icann.org/mailman/listinfo/accountability-cross-community</a><br>
<br></blockquote></div>