[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG-ACCT #39 - 7 July

[Kimberly Carlson]

Hello all,

The notes, recordings and transcripts for the CCWG ACCT Meeting #39 - 7 July will be available here:

https://community.icann.org/pages/viewpage.action?pageId=53782553

A copy of the notes and action items may be found below.

Thank you

Best regards,
Kim


ACTION Items
ACTION ITEM - Prepare analytical slides on third model
ACTION ITEM: Investigate single membership model

Notes
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.
1. Welcome, roll call & SoI
Contact staff if you need assistance to update/post your SOI.
Keith Drazek, Cheryl Langdon-Orr and Greg Shatan are on phone.
2 WPs Progress updates
WP2
Calls have been set up for Wednesday and Monday to focus in on getting work done. An annotated comment tool has been circulated to the group and an update will be sent soon. Tool will need to be reviewed in advance of calls. We have significant issues to discuss.
WP1
Call on Wednesday, Friday and next Monday. We have volunteers working on drafting content for second report based on BA disucssions and public comment period. Voting rights and mechanisms will be discussed in upcoming calls as well as AoC. After Paris we will update the public comment tool.
WP3
First call held on 6 July. We will be dividing work with regards to emerging issues into three subgroups. Reading list in place. They will build inventory of mechanisms already in place. If no mechanisms in place, we will create a list of items to discuss at Paris meeting.
ST-WP
Call planned for Wednesday.
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All volunteers with availability should join and help with drafting for Paris. A short number of key principles can help us focus on what matters: 1) stay focused on issues for which we have wide support and not reopen new issues. We have tremendous summaries of public comment that were produced ahead of BA. Read public comment summaries and check what was agreed on. 2) we have spent time to define WS1 and WS2. WS1 is measures that would enable implementation. This should help us draw line on what can be done now and in WS2. 3) To have a productive meeting in Paris, we will need to have documents in advance. Frozen deadline for Paris documents is: 14 July - 23:59 UTC. We are freezing document supporting F2F discussions 2-3 days prior to meeting for all to be given opportunity to review documents and avoid last minute submissions.
Initial outline of Paris meetings
Outcome: find common ground on discussions labeled open so that second proposal can be drafted for WS1 in time for PC2.
Agenda will include: Work Stream 1 items out of WP3, discussions on community mechanisms (models and modalities), removal/recall of Board members, contributions from GAC, refinements needed on IRP, CWG requirements.
We will build agenda on topics rather than review report line by line.
We will provide a consolidated agenda by next Tuesday.
Feedback:
- Removal and recall Board - why?
--> Individual Board member removal and recall of Board yielded comments that were not unanimously in favor and a number of comments requested refinement.
--> It may no longer need to be considered depending on model.
Lawyers' presentation
The slide-deck will allow further discussion in Paris. The independent legal counsel walked the CCWG-ACcountability through the slide-deck. See - https://community.icann.org/download/attachments/52890082/Description%20and%20Comparison%20of%20_Empowered%20SO_AC%20Membership%20and%20Designator....pdf?version=1&modificationDate=1436271588750&api=v2 - for more information.
Slide 3: we left BA with better understanding of hoe community works. We would like to provide you with pathways but don't have a biaised in terms of the outcome. We heard that the current mechanisms are insufficient. The concerns underline difference of opinion. The models put on table in BA address some of the concerns.
Slide 4 Trust and enforceability continuum
Slide 5 - Empowered SO/AC membership relies on direct membership but it does not require legal personhood. The empowered SO/AC designators model expands on current rule of selecting designators. Both of models respond to concerns of lack of enforceability.
Slide 6 Common elements: 1) they rely on SO/ACs to operate; 2) they rely on staff, Board to apply Bylaws. Enforceability is enhanced through direct rights or indirect rights around powers that are described in initial proposal. CWG dependency power was added. Some of powers are subject to indirect enforcement.
Slide Empower SO/AC membership model - nobody would be required to be a member and any can choose to opt-in. It requires legal personhood. Exercising powers would not change. Door would remain open for membership.
Slide 8 - refer to set of questions.
Slide 9 - Slide 10 - Slide 11
Slide 12 - More detail about powers, how they would be enforceable primarily through encouraging binding process (IRP process).
Slide 13 - We are trying to provide detail on implementation. We have had to make some modification.
Slide 14 - We have model where Board has full control over ICANN subject to Bylaws and articles of incorporation. Powers to amend articles of Bylaws are currently solely in hands of Board.
Slide 15 - One of the problems is that with membership model, we would be trying to draft a structure where there may be no members. In corporate law that would be a problem. Both models start with voluntary compliance phase. There is a difference between going to membership and designators. There is a trigger: both models are essentially relying on rights giving to non-members. Read slide for description of Bylaw enhancements. Designators have agreement as to when will exersice rights. Any SO/ACs could opt in at any time in both models.
Slide 16 - The models were modified to drive them as far as we could drive them. It does not mean we were able to get 100%. Models may involve trade-offs. Enforcement issues depending on model.  There is a risk members could capture organization, hence the majority trigger. We will need to work on limitations on voting agreements.
Slide 17 -  Slide 18
Slide 21 - CCWG to populate this slide in Paris
Slide 22 -
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This is an introduction to Paris discussions: a common baseline of information around these models.
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Feedback:
- We should have asked to consider how two models will impact on overall proposal: mission, core values, principles etc. We need to understand to what extent models can deliver on elements of proposals. Slide 16: it is noted that designator model would not have reserved powers etc - it is important to draw that out more clearly.
---> In interest of time, issues are more straightforward. Focus on difficult areas. This needs be looked at holistically. We can add more detail in Paris on how issues are impacted.
- If the escalation is not decided by the whole community as described, does that enable member to do enforcement he wants? Quid of third model - can we have a review of it?
---> Third model is not a separate model, it is a modification. Both models think about legal personhood.
- The way the empowered designators model is described implies right to rejection. To what extent can we request preapproval on issues that require rejection?
- Balance of powers of SO/ACs is an important point we need to look at. Are we happy with voluntary model? Do we need a full legal enforceability mechanisms? This is something we need to think strongly about as we go into Paris. A set of questions will be sent to list after call.
---> We are not prejudging level of enforceability needed. It is for community to resolve levels of enforceability.
- Summary slides would be welcome. Community is mixed about enforceability. Is there a way to reduce down to questions of preference.
---> We are trying to extrapolate how law would apply. We can come up with questions designed to guide further discussion and determine where group is.
- Lawyers are pushing for membership. There is nothing new in this presentation. Unilateral presentation and no time for questions. Counterproductive.
- If there is no community escalation, does that prevent any SO/AC or member to become a legal person and enforce what it wants.
---> There is issue with membership model. Slide 16 talks about suits: it is unclear how strongly we will be able to limit single member exercising statutory rights. We have suggested delaying conversion to membership status.. We are not sure how we can constrain power (bullet 3 - slide 16). We can channel process to IRP. Should someone decide to go around it, still deciding how to constrain that.
--> Membership model unquestionably gives the community the strongest amount of control  Members can override Board decision. If that is your priority, it is the strength and weakness of member because that power goes to whoever is a member. The designator model has weakness of not being able to force Board to do certain things.
- Deritative law suits: we should know what we are getting into. What does it mean for community? Are we going to have situation where Board members could be under threat of litigation?
---> We have not been able to determine whether we can have Bylaws or contracts stipulate that these type of disputes need to go through IRP. There are cases in Maryland but it is unclear in many States whether that applies. We can attempt to draft Bylaw that prescribes it. Difficulty comes when get in a severe dispute, I don't know we can prevent that.
- I understood its advantage is to avoid a particular SO/AC taking power of the the other - are there any observed weaknesses we should note?
--> All SO/ACs would participate in community mechanism. Instead of having SO/ACs be legal person, you would make body the legal person that would be sole member of ICANN. It would function as contemplated. It is not an avatar. Whatever vote of community is, it would be vote of member in regards to powers with respect to ICANN. Bylaws that community mechanism is to be recognized as legal person. Details to be worked out.
--> It would be resolution of group. We would draft bylaw for resolution to be sufficient to confer legal personhood. It is not the unincorporated association that was referred to as avatar.
- Could you provide us with overview of how it might work and solve problems with membership model or if these problems don't exist with single member. Wary about how solving group. Would appreciate if analysis of how it meets criteria.

--> It is  for Cochairs to order work.

- Single membership - we have seen a lot of problems. We are working on theory. We can't sell product. We have not made progress. We have to simplify matter - reconsideration and power to remove board. No point in membership.

- Lawyers will be speaking on third option - no one is deciding anything. We will be looking at models in Paris.

- How to protect minority rights in this model?
---> Through IRP mechanism e.g. More work is needed on what minority rights are we seeking to protect and how to protect them
--> Concept of single member model is that we move membership status from individual SOs Acs and move it up to whole community. The membership model gives power to the members - it gives it to each member and to member collectively. The individual component community won't have statutory rights of members.  Questions really go to pros and cons. You asked us to push two models. You have to agree which of the models provides best trade-off.

- Third model seems good but would like same analytical work.
ACTION ITEM - Prepare analytical slides on third model.

- Would delegate option be a valuable option to investigate and why or would this option not have advantage?
--> Delegate option was raised early in process. Outside of religious corporate context, delegates are representative of members. delegate structure is a refinement of membership structure. Delegates are used where you have such a large membership that you could no longer expect members. Delegate structure is designed to challenge membership rights through delegate.

- What kind of threshold would it need to make decisions. How does it save us from pitfalls.
--> It would be helpful to have additional guidance.

-Explain why your views on delegates defer from Jones Day's views.

- The superset is not a large number of SO/ACs. Focus on that as we make decision. We can't ignore it.
---> Communities should consider who is going to participate and at what level

- Are we looking at designators model with pre-approval rights?
---> Expecting leadership to tell us what is on table.

Conclusions
Traction to solidify the further investigation in writing of model as single members, taking into account questions in the chat related to this model. We have sufficient traction for that and it will be valuable ahead of Paris.
ACTION ITEM: Investigate single membership model
We should take suggestion to strengthen weakness to recap analysis. It will help us focus on benefits and concerns associated with each model.
Delegate option is triggering legal controversy. Suggest it is off table
Pre approval rights: before certification - we need to get back to requirements and initial discussions first. It is too early to get legal search on this. Note
concerns raised in Istanbul about budget paralysis etc. This would be a change from the position we put forward in the first proposal.
We must have a reference model in Paris or the timeline will be broken.
Frozen deadline will apply to legal counsel's document. Counsel can ask questions to group to help guide thinking for meeting.


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