[Ccwg-auctionproceeds] Auction Proceeds Mechanism A - Internal Department at ICANN
Sam Lanfranco
sam at lanfranco.net
Wed Nov 20 14:59:21 UTC 2019
This addresses the concern. But I have a secondary question.
Is it necessary to say "The reason for this..."? Maybe start the next
sentence with "The Board decision in any review...".
Sam Lanfranco
On 11/20/2019 3:22 AM, Emily Barabas wrote:
>
> Hi Alan, Erika, and everyone,
>
> Would this proposed edit address the concern you are raising?
>
> "The CCWG did agree that appropriate measures must be taken that would
> exclude *the use of* applicants from using ICANN accountability
> measures such as IRP in relation to challenges for individual
> applications. The reason for this recommendation is that the Board
> decision in any review context would be in relation to the overall
> program’s disbursement of funds based on the recommendations of the
> independent evaluation panel and not as a result of the ICANN’s Board
> assessment of an individual application.
>
> (...)
>
> CCWG Recommendation #NEW: Applicants *and other parties* should not
> have access to ICANN accountability mechanisms such as IRP *or other
> appeal mechanisms* to challenge a decision from the independent
> evaluation panel to not approve their application, but applicants not
> selected should receive further details about where information can be
> found about the next round of applications as well as any educational
> materials that may be available to assist applicants.”
>
> Kind regards,
>
> Emily
>
> *From: *Ccwg-auctionproceeds <ccwg-auctionproceeds-bounces at icann.org>
> on behalf of Erika Mann <erika at erikamann.com>
> *Date: *Wednesday, 20 November 2019 at 07:14
> *To: *Alan Greenberg <alan.greenberg at mcgill.ca>
> *Cc: *"ccwg-auctionproceeds at icann.org" <ccwg-auctionproceeds at icann.org>
> *Subject: *Re: [Ccwg-auctionproceeds] Auction Proceeds Mechanism A -
> Internal Department at ICANN
>
> You’re absolutely right. We already said we would do this.
>
> Erika
>
> Sent from my iPhone
>
>
> On Nov 19, 2019, at 8:50 PM, Alan Greenberg <alan.greenberg at mcgill.ca
> <mailto:alan.greenberg at mcgill.ca>> wrote:
>
> I agree that we should make a simple statement that ICANN's
> accountability measures cannot be used in relation to Auction
> Proceeds grant requests (regardless of who might file them). This
> has nothing to do with the approval of annual budgets. If the EC
> decides that the tranch allocated in the budget is not
> appropriate, it can still take action under its powers. We are
> proposing nothing related to the powers of the EC itself.
>
> I presume the Board will ultimately approve whatever it approves
> contingent on the Fundamental Bylaw change being approved by the
> EC. If the EC does not approve it, we are back to square one (or
> somewhere, but do not have an Auction Proceeds plan that is workable).
>
> If there are auction proceeds from further rounds, AND the ICANN
> Board decides they go into te same post as we have now, fine. If
> there are no auction proceeds or if they are designated for
> something else. fine.
>
> Regarding Bylaws 25.4, note that the lead-in words are "for
> avoidance of doubt". The earlier section of 25 explicitly call out
> the process which is led by the Board. We have already approved a
> fundamental Bylaw change and the process is understood (I speak as
> a former member of the EC Administration).
>
> Alan
>
> At 19/11/2019 01:31 PM, Aikman-Scalese, Anne wrote:
>
> Erika, Becky, et al,
>
> *Proposed Final Report and Consensus
> *
> I believe there was CCWG consensus regarding the need for a
> Fundamental ByLaws change as to the unavailability of Request
> for Reconsideration (RFR) and Independent Review Panel (IRP)
> in relation to _applicants_ vis-Ã -vis the grant-making
> process. Here, the CCWG makes a NEW recommendation on page 23
> of the Proposed Final report in relation to remedies available
> to applicants for grants. This recommendation does not cover
> the possibility of RFR and IRP that might be filed by someone
> other than an applicant and I believe that risk must be
> controlled as well. (It’s possible persons other than
> applicants could file an RFR or an IRP in relation to
> ICANN’s handling of the grant-making process.) The Proposed
> Final Report should likely also reflect that this requires a
> Fundamental ByLaws change requiring approval by 3/4 of the EC
> because public commenters need to know this.
>
> In the limited tracking I have done prior to becoming the
> voting rep for the CSG Chartering organization, I don’t
> recall any specific discussions in relation to a ByLaws
> amendment relative to the powers of the Empowered Community
> established in the revisions to the ByLaws made in 2016 as a
> result of the Accountability Workstream 1 work. Did the CCWG
> discuss these specific Empowered Community powers in relation
> to the Budget relative to use of Auction Proceeds? Should the
> CCWG clarify that we are not recommending ByLaws changes in
> relation to EC powers? And if we do, does that make individual
> grants subject to EC powers (a result the CCWG does not want.)
>
> To be specific, it does not appear to me from the Proposed
> Final Report that there has ever been a CCWG Consensus
> Recommendation in relation to (a) availability of RFR and IRP
> to persons other than applicants for grants or (b) any effect
> on the EC powers memorialized in 2016 in relation to the use
> of Auction Proceeds funds.
> I sincerely hope we can clarify that the CCWG is not
> recommending that the Empowered Community give up the
> Accountability processes contained in the ByLaws in relation
> to Budgeting of funds obtained via Auction Proceeds. In my
> view as an active member of Subsequent Procedures, this is a
> long term concern since the Sub Pro WG is quite likely to
> confirm that auctions will remain the mechanism of last resort
> in string contention far into the future. While I understand
> that “ability to Sunset†is important in relation to the
> principle of not trying to establish a long term principal
> endowment, it does seem appropriate to consider that future
> new gTLD rounds were always intended and are likely to proceed
> at some point. Thus, future auctions are likely to result in
> additional auction proceeds.
>
> Again, in order to be crystal clear on page 23 of the Proposed
> Final Report, it would also be helpful if Samantha could
> clarify how specific ByLaws amendments can be proposed based
> on the CCWG recommendations. The ByLaws seem to provide in
> Article 25 that this cannot be “directly proposed†by the
> CCWG itself so I assume that what the CCWG recommends would
> need to then lead to a formulation by the Board of a specific
> ByLaws amendment. See attached section 25.4.
>
> Accordingly, in relation to the Proposed Final Report, I
> believe that the Recommendation (NEW) on page 23 should be
> reworked to clarify the CCWG Recommendations in relation to
> the needed ByLaws amendments.
> *
> Choice of Mechanism and Survey
> *
> Separately, in regard to the description of risk management I
> will need to provide to the CSG, I am trying to clarify
> whether it would be advisable (for the Board, ICANN org, the
> Community, and the grant recipients themselves) to structure
> as follows:
>
> (1) Fundamental ByLaws change to remove RFR and IRP from (a)
> remedies for applicants for the funds (b) remedies for anyone
> else who may have standing to file against ICANN decisions
> about Budgeting re use of funds inside the org and (b) ICANN
> decisions about how much to allot to grant-making in
> “tranchesâ€.
>
> (2) Preserve EC Powers as they stand in the ByLaws in relation
> to general Budgeting for both (a) the ICANN org use of the
> Auction Proceeds funds and (b) ICANN org budgeting of
> “tranches†for grant-making purposes. EC powers as to the
> Budget process have a much higher threshold for challenging
> ICANN’s accountability than do RFR and IRP. A challenge is
> not easily mounted and a forum must be convened, etc, etc. But
> I don’t think anyone would want the EC powers to apply to
> any individual grant. So it seems we need to choose a
> structure that keeps the “Budget†aspect of an overall
> line item for grants within the EC Accountablity provisions
> but puts the individual grant-making outside the EC
> Accountablity powers. (Perhaps I am wrong that individual
> grant-making could be subject to EC general powers if
> Mechanism A is utilized and if so, please advise. I just
> don’t think the CCWG actually has a Consensus on
> recommending a ByLaws change in relation to the EC
> accountability powers.)
>
> (3) To preserve the EC powers as to Budget, it would seem
> “cleaner†to place the actual individual grant-making
> processes outside ICANN org and have the CCWG recommend and
> the EC acknowledge that specific individual grants are not
> subject to the EC Budgeting powers if
> (a) they are made by a pre-existing non-profit with expertise
> in grant-making working under the guidelines provided by the
> work of the CCWG and in accordance with the Board’s
> oversight responsibilities and fiduciary duties. (Mechanism B)
> (b) or they are made by an ICANN Foundation formed with an
> independent Board of Directors similar to the manner in which
> PTI was formed with ICANN as the sole member of the
> corporation and thus well able to conduct oversight and
> fiduciary responsibilities.
>
> I appreciate any observations other CCWG members may have that
> will help bring me up to speed.
>
> Thank you,
> Anne
>
> *Anne E. Aikman-Scalese**
> *Of Counsel
> 520.629.4428 office
> 520.879.4725 fax
> AAikman at lrrc.com <mailto:AAikman at lrrc.com>
> _____________________________
> []
> Lewis Roca Rothgerber Christie LLP
> One South Church Avenue, Suite 2000
> Tucson, Arizona 85701-1611
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> []
> Because what matters
> to you, matters to us.™
>
>
>
>
>
>
> *From:* Erika Mann <erika at erikamann.com
> <mailto:erika at erikamann.com>>
> *Sent:* Tuesday, November 19, 2019 7:52 AM
> *To:* Becky Burr <becky.burr at board.icann.org
> <mailto:becky.burr at board.icann.org>>
> *Cc:* Aikman-Scalese, Anne <AAikman at lrrc.com
> <mailto:AAikman at lrrc.com>>; ccwg-auctionproceeds at icann.org
> <mailto:ccwg-auctionproceeds at icann.org>
> *Subject:* Re: [Ccwg-auctionproceeds] Auction Proceeds
> Mechanism A - Internal Department at ICANN
>
> *[EXTERNAL]*
>
> *
> ------------------------------------------------------------------------
> *
>
> Becky - That’s what we agreed upon but in the light of
> Anne’s points raised, we should evaluate whether our
> judgement will not be contestable.
> Erika
> Sent from my iPhone
>
> On Nov 19, 2019, at 3:33 PM, Becky Burr
> <becky.burr at board.icann.org
> <mailto:becky.burr at board.icann.org>> wrote:
>
> Anne,
>
> I think Sam is saying that Mechanisms A, B, and C would ALL
> require a fundamental bylaws change to eliminate the
> availability of IRP and Reconsideration with respect to
> individual grant awards. I think we had strong consensus that
> decisions on individual grants should not be appealable using
> Reconsideration and IRP, and that a bylaws change should be
> pursued. Inasmuch as the EC agreed to a fundamental bylaws
> change in Montreal, it seems all members have established the
> necessary processes.
>
> Please correct me if I am wrong, Sam.
>
> Becky
>
> On Mon, Nov 18, 2019 at 5:20 PM Aikman-Scalese, Anne
> <AAikman at lrrc.com <mailto:AAikman at lrrc.com>> wrote:
>
> Thank you Samantha. I want to make sure I understand the
> implications for Accountability mechanisms and ByLaws
> amendments when presenting the options to the CSG. As an
> initial matter, could you please clarify one question as to
> Article 25.4 OTHER AMENDMENTS. “Neither the EC, the
> Decisional Participants, the Supporting Organizations, the
> Advisory Committees nor any other entity or person shall have
> the power to directly propose amendments to these Bylawsâ€.
> In this regard, I gather that the CCWG recommends and then
> the Board itself will specifically propose a Fundamental
> ByLaws amendment in relation to Auction Proceeds. Is that
> your understanding?
>
> It seems a bit unlikely that the EC will want to give up its
> powers in relation to the Budgeting process as regards the use
> of Auction Proceeds for (a) use for grant-making purposes
> (regardless of the mechanism chosen) OR (b) internal use by
> ICANN Org in its own budget. (Perhaps that is why there is a
> bullet point in Board comment relative to the cost of
> complying with Accountability mechanisms. However, this cost
> is identified in that Board comment that now appears on page
> 10 of the Proposed Final Draft as a cost associated ONLY with
> Mechanism A. The other mechanisms are listed in the Board
> input as requiring the further development of independent
> Accountability mechanisms so that is a bit confusing.)
> However, overall Budgeting is of course different from the
> making of individual grants per se. I think we definitely
> need to protect individual grants from being revoked by the EC.
>
> Fundamental ByLaws Changes
>
> It appears that eliminating Request for Reconsideration (RFR)
> and Independent Review Panel (IRP) Accountability mechanisms
> would be a Fundamental ByLaws change requiring 3/4 approval
> from the Empowered Community members (some of whom may not
> have implemented EC processes yet?) Can you confirm this?
> (Article 25).
>
> Mechanism B
>
> In Mechanism B, ICANN works with an outside contractor already
> set up for non-profit grant-making. In that case, it would
> seem that although overall Budget allocation and tranches may
> still be subject to Empowered Community processes, individual
> grants made by the pre-existing expert non-profit would not
> necessarily be subject to being revoked through an EC
> process. In other words, working with a qualified expert
> grant-making organization could reduce risk, including the
> risk to recipients of grants. (EC processes could
> theoretically be used to affect or influence the choice of the
> independent expert non-profit organization and the amount
> being allocated in any “trancheâ€.)
>
> Mechanism C
>
> Re Mechanism C, when PTI was formed, the structure chosen was
> ICANN as sole member of a California non-profit public benefit
> corporation (Article 16.2). I believe actions by the PTI
> Board of Directors remain subject to Empowered Community
> accountability processes, but not to RFR and IRP, but am not
> sure. Can you confirm? If this is the case, could another
> California non-profit public benefit corporation be set up in
> the same manner for purposes of grant-making pursuant to
> Mechanism C? (I am also wondering if outside legal resources
> were used to set up PTI or if this was done in-house.) In
> other words, could another CA non-profit formed pursuant to
> Mechanism C be exempted from RFR and IRP, but NOT be exempted
> from other EC accountability mechanisms, in the same manner as
> the PTI formation was handled?
>
> Many thanks for your patience with respect to questions which
> may already have been addressed in prior deliberations of the
> CCWG.
>
> Anne
>
> .
>
> .
>
> From: Samantha Eisner <Samantha.Eisner at icann.org
> <mailto:Samantha.Eisner at icann.org>>
>
> Sent: Monday, November 18, 2019 1:13 PM
>
> To: Aikman-Scalese, Anne <AAikman at lrrc.com
> <mailto:AAikman at lrrc.com>>; ccwg-auctionproceeds at icann.org
> <mailto:ccwg-auctionproceeds at icann.org>
>
> Subject: Re: [Ccwg-auctionproceeds] Auction Proceeds Mechanism
> A - Internal Department at ICANN
>
> [EXTERNAL]
>
> ------------------------------------------------------------------------
>
> One other note - to your final question of "Has legal advice
> been provided as to whether the formation of an independent
> foundation might avoid the need to amend the ICANN ByLaws with
> respect to IRP, RFR, and Empowered Community provisions?​"
>
> From the legal perspective, we considered the interplay of the
> Bylaws/accountability processes with the different mechanisms
> and our conclusion is that, absent a Bylaws change to exclude
> individual grant actions from the IRP/Reconsideration
> processes, there still remains a risk of the use of ICANN
> accountability processes whether the grant disbursements are
> completed through Mechanisms A, B or C. With that, the need to
> address the scope of the accountability mechanisms through
> Bylaws changes exists across all three mechanisms.
>
> ____
>
> Samantha Eisner
>
> Deputy General Counsel, ICANN
>
> 12025 Waterfront Drive, Suite 300
>
> Los Angeles, California 90094
>
> USA
>
> Direct Dial: +1 310 578 8631
>
> ------------------------------------------------------------------------
>
> From: Samantha Eisner
>
> Sent: Monday, November 18, 2019 11:07 AM
>
> To: Aikman-Scalese, Anne; ccwg-auctionproceeds at icann.org
> <mailto:ccwg-auctionproceeds at icann.org>
>
> Subject: Re: [Ccwg-auctionproceeds] Auction Proceeds Mechanism
> A - Internal Department at ICANN
>
> Thanks Anne. For clarity as we look internally at the
> potential Bylaws changes that could be needed, when you are
> considering the potential for a Bylaws change to confirm that
> the EC's power "does not apply to such grant-making​", are
> there particular reserved powers that the EC holds to which
> you are referring? However the mechanism is formed (funding a
> supporting foundation through tranches or having an internal
> disbursement mechanism), there might be a need to consider the
> EC's ability to reject a budget/plan on the basis of ICANN
> fulfilling the program based on the CCWG's recommendations.
> Are there other powers that you are also seeing as impacted?
>
> ____
>
> Samantha Eisner
>
> Deputy General Counsel, ICANN
>
> 12025 Waterfront Drive, Suite 300
>
> Los Angeles, California 90094
>
> USA
>
> Direct Dial: +1 310 578 8631
>
> ------------------------------------------------------------------------
>
> From: Ccwg-auctionproceeds
> <ccwg-auctionproceeds-bounces at icann.org
> <mailto:ccwg-auctionproceeds-bounces at icann.org>> on behalf of
> Aikman-Scalese, Anne <AAikman at lrrc.com <mailto:AAikman at lrrc.com>>
>
> Sent: Friday, November 15, 2019 4:41 PM
>
> To: ccwg-auctionproceeds at icann.org
> <mailto:ccwg-auctionproceeds at icann.org>
>
> Subject: [Ccwg-auctionproceeds] Auction Proceeds Mechanism A -
> Internal Department at ICANN
>
> <image001.gif>
>
> On the topics of “Accountability†and “Best
> Practicesâ€, has anyone looked at whether the grant-making
> function placed inside an internal department of ICANN would
> be subject to review under the Empowered Community
> Accountablity rules? On page 10 of the current draft, there
> is a bullet point called “On-going costs only in Mechanism A
> – Management and support of ICANN’s
> accountabiliitymechanisms triggered by the grant distribution
> activity (if any.)â€
>
> In terms of risk assessment, I really can’t see the
> grant-making process being subject to the Empowered Community
> accountability procedures. On the other hand, I don’t know
> that the EC will readily accept amending the ByLaws for
> purposes of getting the grant-making outside the EC process.
> This is especially true in that all the Accountability work
> was done in CCWGs in two lengthy work-streams. I apologize
> if this was previously discussed by the CCWG – doing my best
> to catch up.
>
> <
>
> If we think that the ByLaws would need to be amended not only
> to remove the availability of the Request for Reconsideration
> (RFR) and the Independent Review Panel (IRP), but also to be
> amended to state that the power given to the Empowered
> Community does not apply to such grant-making, then we should
> say so in the Proposed Final Report.
>
> Has legal advice been provided as to whether the formation of
> an independent foundation might avoid the need to amend the
> ICANN ByLaws with respect to IRP, RFR, and Empowered Community
> provisions?
>
> Thank you,
>
> Anne
>
> <image002.png>
>
> Anne E. Aikman-Scalese
>
> Of Counsel
>
> 520.629.4428 office
>
> 520.879.4725 fax
>
> AAikman at lrrc.com <mailto:AAikman at lrrc.com>
>
> _____________________________
>
> <image003.png>
>
> Lewis Roca Rothgerber Christie LLP
>
> One South Church Avenue, Suite 2000
>
> Tucson, Arizona 85701-1611
>
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> Because what matters
>
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--
------------------------------------------------
"It is a disgrace to be rich and honored in an
unjust state" -Confucius
邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也
------------------------------------------------
Dr Sam Lanfranco (Prof Emeritus), Econ, York U., CANADA
email: sam at lanfranco.net Skype: slanfranco
blog: https://samlanfranco.blogspot.com
Phone: +1 613-476-0429 cell: +1 416-816-2852
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