[CCWG-ACCT] Townhall meeting follow-up

Mon Jun 22 20:06:43 UTC 2015

Some quick thoughts in line below:

On 22 June 2015 at 16:41, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:

> Hi Jordan,
>
> On Mon, Jun 22, 2015 at 4:08 PM, Jordan Carter <jordan at internetnz.net.nz>
> wrote:
>
>> Hi Seun, all:
>>
>> On 22/06/2015, at 3:55 pm, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:
>>
>> Hello Kavouss,
>>
>> While i agree that its good we get further clarity on the "Empowered
>> SO/AC model", i think we have the overall high level characteristics of the
>> model and it may be good to consider other-ways to "enforceability" other
>> than formalising the SO/AC as well.
>>
>>
>> I think the advice we have received is that designator approach in the
>> legal sense could allow for enforcement of 4/6 powers, membership approach
>> 6/6, and voluntary approach 0/6.
>>
>
> This is a useful comparison Jordan and i think we need to strike some
> distinction on the type of enforcement. I will assume what was considered
> above is direct enforcement from the community, there is also the direct
> enforcement by the bylaw (which would have been put in place by the
> community).
>

I don't think it is accurate to describe "just follow the bylaws" as
enforcement - not because Board members don't try, and aren't obliged, to
follow the bylaws. They definitely are required to do that and are obliged
to as a matter of fiduciary duty to follow the law and uphold the
organisation's mission.

The question is, what can be done if they don't - individually or
collectively. That's why it's being called "voluntary" - nobody has the
right to hold the Board or its members to account for not following the
bylaws. By hold them to account I mean the ability to require them to do
so. So without that ability, it's a matter of good will.

> If we look at enforcement as board members complying with the organisation
> bylaw then the current score of the so-called "voluntary approach" could
> change significantly. I call it so-called voluntary approach because i
> think its in practice beyond voluntary for board members. Their accepting
> to be board members should technically mean they are bound to abide by the
> organisation bylaw.
>

The voluntary model does *not* refer to whether it's an optional extra to
follow the bylaws. Directors are for sure required to do that, as I noted
above. They *are* bound by the bylaws.

>
>
>> For designator or member you need some kind of “legal person”.
>>
>
> On the designator option i think there may be need to re-question the
> legal team on this. ARIN recently received some legal advice on possibility
> of NRO becoming a designate/member within ICANN[1] and it does seem an
> interesting read. I quote the specific section below:
>

The memo you refer to below is an interesting read, but it tells you that
the NRO is an unincorporated association. So that's in support of my point.

> "Designators are simply those parties provided in a corporation’s articles
>> or bylaws as having the power to appoint some or all of the corporation’s
>> directors"
>>
>
> So i don't really understand the idea of "legal person" requirement as
> indicated by the ccwg legal team, perhaps they need to clarify.
>

It comes back to what I said above: without being a legal person, they
can't enforce their right to appoint or remove said Director if the person
in place refuses to play by the rules.

> That said, this is not to indicate a preference at the moment but to
> ensure we get clarity on what is possible and what isn't in all these models
>
>
Helpful in that respect.

And happy to note Alan's correction in the subsequent message, that his
model of pre-committed resignations does leave the Board Director removal
power on the table (so 1 or 2/6).

cheers,
Jordan

>
>>
>> If there are other paths to enforceability I would be interested to know
>> what they are - does anybody know of any?
>>
>>
>> I for one like the empowered SO/AC model as its really an improvement to
>> the full membership model and less complicated (seem to be an advanced
>> designator model). Nevertheless there is still the reality that its a
>> members model and there are cons associated with this and it may be good to
>> put them side by side with the current "voluntary model" that operates an
>> "Empowered bylaw" post-transition  (yeah empowered seem to be the buzz word
>> lately ;-) )
>>
>>
>> This is a beast I have never heard of, an empowered bylaw :-)
>>
>
> Actually that is me giving a funky title to the ccwg proposed bylaw
> changes as i see it as enhancement of community engagement in ICANN board
> decision making process.
>
> Regards
> 1.
> https://www.nro.net/wp-content/uploads/ARIN-Memo-re-NRO-Status-as-an-Unincorporated-Association.pdf
>
>>
>> J
>>
>>
>> Regards
>>
>> On Mon, Jun 22, 2015 at 3:10 PM, Kavouss Arasteh <
>> kavouss.arasteh at gmail.com> wrote:
>>
>>> Dear All,
>>> First of all ,let us wait for a clear way forward to be on the Table be
>>> fore our next meeting on Wednesday
>>> Secondly, if we clearly distinguish between rights to participate to
>>> voting of any or all of the six/seven powers as well as  issues relying to
>>> IRP FROM issue of empowerment ,requiring membership ( at least one member
>>> to have a stand for enforce certain decisions /conclusion made through
>>> voting ,many questions would be narrowed down to fewer numbers .
>>> Pls kindly advise on that
>>> Kavouss
>>>
>>> 2015-06-22 18:52 GMT+02:00 Seun Ojedeji <seun.ojedeji at gmail.com>:
>>>
>>>> Dear all,
>>>>
>>>> First i like to thank the Co-Chairs for responding to all the questions
>>>> during the townhall meeting. Milton mentioned 2 things and i like to use
>>>> that to provide my feedback/suggestions:
>>>>
>>>> - Purpose of the CCWG:
>>>>
>>>> IMO, i think the purpose of the CCWG is to recommend ways to improve
>>>> ICANN accountability but enforceability could just be one of such features
>>>> and not the ultimate goal.
>>>>
>>>> - Enforceability solutions other than membership:
>>>> Considering the complications relating to the various membership models
>>>> that has been suggested, there is obvious need to consider what is
>>>> achievable within the current structure and i think everything is
>>>> achievable except enforceability. Puting that in mind, i think the CCWG
>>>> report in summary has provided the following (amongst others):
>>>>
>>>> - They have looked into the current bylaw and proposed edits that would
>>>> ensure community engagement in the board decision making process which is
>>>> not existing at the moment
>>>> - They have proposed ways by which the suggested edits to the bylaw
>>>> once implemented can be updated (fundamental bylaw)
>>>>
>>>> I think these 2 items are critical accountability enhancement and once
>>>> implemented would have provided ICANN board with some specific guideline on
>>>> how to approach issues as accordingly.
>>>>
>>>> So it seem to me that we will already have some enforceability without
>>>> actually requiring membership since an organisation board is required to
>>>> obey/comply with its bylaw. So if the bylaw says; before you can do xyz, it
>>>> needs to go through abc process, why would the board not follow/obey those
>>>> direction as defined in the bylaw?
>>>>
>>>> As a follow-up to my question about ICANN board complying with its
>>>> bylaw. I will like to ask the following questions:
>>>>
>>>> - Has there been any known scenario where ICANN board at the moment did
>>>> not obey its current bylaw?
>>>> - If ICANN board does not obey its bylaw, what its legal implication to
>>>> the board members with regards to their mandate?
>>>> - Is it possible for board members to sign a mandate upon induction
>>>> indicating that they would resign if the community (through a defined
>>>> process) determined that they did not follow the organisation's bylaw?
>>>>
>>>> Regards
>>>> --
>>>> ------------------------------------------------------------------------
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> *Seun Ojedeji,Federal University Oye-Ekitiweb:
>>>>   http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/>Mobile: +2348035233535**alt
>>>> email:  <http://goog_1872880453/>seun.ojedeji at fuoye.edu.ng
>>>> <seun.ojedeji at fuoye.edu.ng>*
>>>>
>>>> The key to understanding is humility - my view !
>>>>
>>>>
>>>>
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>>>>
>>>>
>>>
>>
>>
>> --
>> ------------------------------------------------------------------------
>>
>>
>>
>>
>>
>> *Seun Ojedeji,Federal University Oye-Ekitiweb:
>>   http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/>Mobile: +2348035233535**alt
>> email:  <http://goog_1872880453/>seun.ojedeji at fuoye.edu.ng
>> <seun.ojedeji at fuoye.edu.ng>*
>>
>> The key to understanding is humility - my view !
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>>
>
>
> --
> ------------------------------------------------------------------------
>
>
>
>
>
> *Seun Ojedeji,Federal University Oye-Ekitiweb:
> http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt
> email: <http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
> <seun.ojedeji at fuoye.edu.ng>*
>
> The key to understanding is humility - my view !
>
>
>

-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
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