[CWG-Stewardship] Question re fiduciary duties and separation

Wed Sep 2 12:28:08 UTC 2015

Jordan,

I understood your question and my personal interpretation is that this should be covered in the bylaws work.

Section 8 of the Sidley memo on bylaws specifically deals with the separation process. 

Therefore, if (eventual) separation is contemplated by the CWG’s work, diligent legal work should include provision (via bylaw modification or otherwise) for the ICANN board to authorise such (eventual) separation.

Good question.

Jonathan

From: Jordan Carter [mailto:jordan at internetnz.net.nz] 
Sent: 02 September 2015 06:45
To: Christopher Wilkinson <lists at christopherwilkinson.eu>
Cc: Avri Doria <avri at acm.org>; cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] Question re fiduciary duties and separation

Thanks all, for these comments.

My question was on a very narrow point, around whether the ICANN Board would in fact be *able* to authorise a transfer as part of the escalation process towards a separation.

I've seen Greg's reply as the nearest to a direct answer on that, which confirms no specific advice on the point but argues it will be possible.

If that is where it stands, then I can consider myself informed - concerned, but informed.

thanks,

Jordan

On 2 September 2015 at 08:00, Christopher Wilkinson <lists at christopherwilkinson.eu <mailto:lists at christopherwilkinson.eu> > wrote:

Well, Avri, precisely. As I pointed out some time ago, should matters ever reach such a pass that separation would be invoked, then the machinery proposed would not be fit for purpose.
Other measures, external to ICANN, IANA and this Community would have intervened long before.

Indeed, if all that CWG has achieved, in this respect, is to create some kind of moral hazard hanging over ICANN, then the last eighteen months work has been disproportionate.

CW

On 01 Sep 2015, at 18:45, Avri Doria <avri at acm.org <mailto:avri at acm.org> > wrote:

> Hi,
>
> Look at how long it took for the NTIA to have a rebid.  And there is
> nothing in the separation function that prohibits doing a bid at a point
> in the process.  In fact it is quite specific about a bid and the
> possibility the the current PTO could bid again.
>
> My hope though, is that just the act of getting the machinery cranked
> up, would be enough of a threat to cause ICANN to try to fix any
> problem.  But if it didn't, I predict it would take about as long as it
> took the NTIA, with its call for comments on how to do it &c.  We also
> have to take into account the reactions and actions from Numbers and
> Protocols at the time of any separation preparation - that would take
> some time.  I think the reference solution strikes the balance between
> changing over too easily and not being able to change over at all.
>
> avri
>
>
>
>
> On 31-Aug-15 22:17, Mueller, Milton L wrote:
>>
>>
>>
>>
>>
>> *From:*cwg-stewardship-bounces at icann.org <mailto:cwg-stewardship-bounces at icann.org> 
>> [mailto:cwg-stewardship-bounces at icann.org <mailto:cwg-stewardship-bounces at icann.org> ] *On Behalf Of *Jordan Carter
>>
>> I keep coming back to the status quo. At the moment, the USG can
>> reassign the functions. We need to be careful that, given there is a
>> principle of separability, it isn't rendered inoperable by the CWG's
>> proposal through this matter.
>>
>>
>>
>> Frankly, I think the current proposal comes very close to rendering
>> separability inoperable. While separation is theoretically possible,
>> it suffers from the absence of the basic notion of competitive
>> bidding. As one journalist (Kieren McCarthy) put it, “There are no
>> less than 10 steps that have to go through seven different committees.
>> Two of those committees have to be specially created and the process
>> requires super majority votes from the two main supporting
>> organizations not once but twice.”  The process is essentially
>> designed to avoid change and keep it in PTI/ICANN’s hands in all but
>> the most exceptional circumstances – and in most of the exceptional
>> circumstances one could imagine a process this slow and complex would
>> be practically useless. The basic idea of a renewable contract has
>> been buried by a mound of steaming….committees and reviews. The CWG
>> lost sight of the basic question they should have been answering,
>> which is: “how can we keep the contractor honest and the process of
>> RZF editing maximally efficient by making the possibility of the IFO’s
>> replacement real?”
>>
>>
>>
>> My two cents
>>
>> --MM
>>
>>
>>
>>
>>
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>
>
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