[CCWG-ACCT] RES: RES: [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment

Wed Feb 4 13:57:47 UTC 2015

Dear Seun,

Thank you for the comments. 

Although I have serious doubts about the reasonability of such a "veto" under these conditions, I don't think it would be fair to consider a Board member "recalcitrant" just because he would exercise his legitimate right of rejecting a community decision. I believe we need to come up with a suggestion that empowers the community on concrete, effective and legal terms. 

And yes, I support the idea of using the SOs/ACs as channels to convey the opinion of actors in the vast "global multistakeholder community", but as long as there are more effective efforts  - there are some already - to reach out to those non-ICANN actors  which may be affected by the decisions taken by the Corporation. 

Regards,

Sec. Pedro Ivo Ferraz da Silva
Divisão de Sociedade da Informação (DI)
Ministério das Relações Exteriores
T: + 55 61 2030-6609

-----Mensagem original-----
De: Seun Ojedeji [mailto:seun.ojedeji at gmail.com] 
Enviada em: terça-feira, 3 de fevereiro de 2015 17:55
Para: Pedro Ivo Ferraz da Silva
Cc: Robin Gross; accountability-cross-community at icann.org
Assunto: Re: [CCWG-ACCT] RES: [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment

Appreciation also to Robin, and i have a follow-up to Pedro's useful comments below:

On Tue, Feb 3, 2015 at 8:33 PM, Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br> wrote:

	·         In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation."

I guess that is how i also understand it and i think its normal to give the board such option in this process and watch them take it ;-). If they then decide to take the route of rejecting then i guess that would be when the second community tool will kick-in, i.e recall of recalcitrant board members. What i think needs to be clarified is whether just empowering the community (a CCWG perhaps) through the bylaw (without formal creation of any membership structure) will be binding. (I guess it will be useful to get legal advice on that)

	·         What exactly do you mean by "relevant Community"? I believe this concept would definitely need to be nailed down, as it may include many different actors. All SOs and ACs would be an ideal initial list of sub- communities, but we would also need to consider IANA customers and other important actors part of the greater "Internet multistakeholder community" which obviously do have a stake in what ICANN does. 

Hmm...i think going beyond ICANN SOs/ACs could further complicate the task especially as the "Internet multistakeholder community" can mean "infinity" ;-). However i would expect that any SO/AC process will be open enough to accommodated those who are not entirely involved with ICANN community. For instance, I would expect the ccNSO process to provide mechanism that allows non-ccNSO ccTLD to raise their view on a critical issue like this one.

Regards!

	Kind regards, 

	Sec. Pedro Ivo Ferraz da Silva

	Divisão de Sociedade da Informação (DI)

	Ministério das Relações Exteriores

	T: + 55 61 2030-6609 <tel:%2B%2055%2061%202030-6609> 

	De: wp1-bounces at icann.org [mailto:wp1-bounces at icann.org] Em nome de Robin Gross
	Enviada em: terça-feira, 3 de fevereiro de 2015 15:50
	Para: Steve DelBianco; Jordan Carter; Accountability Cross Community; wp1 at icann.org
	Assunto: [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment

	Steve, Jordan, all,

	As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process.  Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration.  

	Best,

	Robin

	Community Veto Process on Key Board Decisions via Bylaws Amendment

	Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members.  This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures.  Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board).  Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined.  We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components).

	The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto).  The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation.   

	Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters.  Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition.  Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it.

	Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community.  Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure.  This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments.  The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.

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	Seun Ojedeji,
	Federal University Oye-Ekiti
	web:      http://www.fuoye.edu.ng
	Mobile: +2348035233535
	alt email: <http://goog_1872880453> seun.ojedeji at fuoye.edu.ng

		The key to understanding is humility - my view !