[CCWG-ACCT] Townhall meeting follow-up

[Farzanh]

Thanks Malcolm, I can't agree more  ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and  enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes ! 

> On Jun 22, 2015, at 6:43 PM, Malcolm Hutty <malcolm at linx.net> wrote:
> 
> 
> 
>> On 22/06/2015 17:52, Seun Ojedeji wrote:
>> - 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. 
> 
> I completely agree with David McAuley's reply on this point.
> 
> Unfortunately, if you achieve "everything except enforceability", you
> achieve nothing more than a clarification of your request. You do not
> achieve accountability, only a clear statement of what you would like
> ICANN to do. The decision rests elsewhere.
> 
>> 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?
> 
> There are many reasons why things go wrong in this world. But I do not
> want to suggest anything you may find fanciful or improbable or, worse,
> that could be interpreted as attacking our honourable current Board members.
> 
> So for now, let's just say that the Board might believe they were
> following the bylaws even if they were not. It is possible to err.
> 
> Beyond that though, is the problem Becky identified earlier: it seems
> you are mistaken when you say that an organisation's board is required
> to obey/comply with its bylaws. We have been told that the Board of an
> organisation with no members has a fiduciary duty to the company that
> takes precedence over the Bylaws: if the Board decides that it is in the
> best interests of the corporation to defy the bylaws, then defying them
> is their legal duty. Only by creating a membership (whether through
> Empowered SOs, UAs, Open Membership, or some other approach) can we
> raise up the bylaws to something the Board must honour in the way you
> assume they already must.
> 
> Incidentally, I don't blame you at all for not realising this: I didn't
> either, and was quite surprised to be told it. But the legal advice
> being what it is, we must act accordingly.
> 
> 
> -- 
>            Malcolm Hutty | tel: +44 20 7645 3523
>   Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange | http://publicaffairs.linx.net/
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