[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

[Malcolm Hutty]

On 07/07/2015 09:21, Seun Ojedeji wrote:
> One of the summary I got from BA was that the "empowered SO/AC
> membership model" and the "empowered SO/AC designator model" would be
> reviewed in detail. Understanding the known challenges with membership
> route, I wonder why we would be spending more legal hours on it after
> the ones already spent till date. 

Actually, Seun, we (I and at least some others) don't understand the
objections to the membership model, that's why we're asking those who
say they have a problem with it to specify their concerns more precisely
so that solutions can be found.

The problem with the designator model is clear and precisely specified:
our task in this CCWG is to ensure that there is an effective means to
hold ICANN to account for adherence to the commitments it makes in its
bylaws. The only route the designator model provides to achieve that
lies through dismissing the Directors. This is wholly inadequate: this
group has made quite clear its view that it considers such action
undesirable and destabilising, and should only be contemplated in utter
extremis. So the designator model simply fails to achieve our goals.

Moreover, the designator model is inflexible: the powers of designators
are fixed in the statute, and we cannot add to them. So this is
insoluble, and the designator model must come off the table: continuing
to discuss it is a waste of our valuable time because it cannot achieve
our primary goal.


The membership model does solve this problem: it provides a clear means
to enforce ICANN's binding commitments. It is also much more flexible:
we can adjust:

* to some extent, the powers of members through the corporate governing
documents;
* to some extent, the means those powers are exercised through the
corporate government documents;
* who may have the right to become a member, and thus who gets to
exercise the powers of membership, again through the corporate governing
documents.
* furthermore, the conditions under which the members' powers may be
exercised, the process for exercising them, and thresholds that must be
reached, can all be further controlled through a binding agreement
between the members.

This gives us many potential routes through which we can seek to address
the concerns that may be raised with membership. I do not doubt that
there may be valid concerns that absolutely need to be addressed. We can
do this, if we all work together in a constructive fashion. The first
step is to clearly identify what it is about the membership model that
so frightens some people, so that we can design in checks and solutions
to those concerns.


Malcolm.


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