[CCWG-ACCT] Townhall meeting follow-up

Tue Jun 23 16:42:38 UTC 2015

I agree with this.  It is a simple but fundamental matter of good governance in any regulatory environment that you provide for enforceable separation of powers and authorities and administrative safeguards.

With respect to Seun’s request for examples, I can think of several recent incidents where a significant portion of the community thinks that ICANN (either/both Board and staff) acted in a manner that was inconsistent with its bylaws.  Under the current construction, there is not even a particularly effective mechanism for the community to decide as a whole whether they agree that the action violated the bylaws, let alone do anything about it if they do.

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From: farzaneh badii <farzaneh.badii at gmail.com<mailto:farzaneh.badii at gmail.com>>
Date: Tuesday, June 23, 2015 at 7:47 AM
To: Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>>
Cc: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Hi Seun,

"1. Has there been any known scenario where ICANN board at the moment did not obey its current bylaw?"

Although I think there might be an answer to your question above, I don't think your question  needs an answer. You do not need something to already have happened to have safeguards against it! In almost all legal systems there are safeguards in place for stopping the board of directors from wrongdoing etc. Board members change and we need institutional safeguards. I think we should certainly re-think some assertion that our community is so unique and can just function based on mutual trust ! Our community is unique but I'm afraid not that unique !

On 22 June 2015 at 18:14, Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>> wrote:
Hi Jordan,

On Mon, Jun 22, 2015 at 5:06 PM, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> wrote:
Some quick thoughts in line below:
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.

This is why i asked the 3 sets of questions previously and i will post this here again. Would appreciate if you could respond to them (item 3 is particularly of interest):

1. Has there been any known scenario where ICANN board at the moment did not obey its current bylaw?
2. If ICANN board does not obey its bylaw, what is the legal implication to the board members?
3. 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?

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.

I am not sure this clarifies what "legal person" mean in this context. Is UA = "Legal person" as NRO in this context is not a person but entity.

"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.

Jordan, there are 2 broad options here:

- Board removal through some form of membership means (designator, member, empowered, hybrid etc)
- Board removal through the option i suggested in my item 3 above. (including route suggested by Alan which by the way i was surprised we seem to not have follow-up)

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).

+1 and i think should be considered as well. Actually i think if we can have the "threatening rod" of board member removal while maintaining the current status of SO/AC, in addition to the fact that board are mandated to abide by the bylaw, the other 5 out of 6 powers would naturally be indirectly exercised.

Thanks

Regards

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<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.nro.net_wp-2Dcontent_uploads_ARIN-2DMemo-2Dre-2DNRO-2DStatus-2Das-2Dan-2DUnincorporated-2DAssociation.pdf&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=cOgPF5VX4LLjBsTLlb7aCkDbn77BIaCwMDiXdlg9JfE&s=9rCs7uM2BbneeufoSp2RCrGgxa0wv73teS_BgfiMCV8&e=>

J

Regards

On Mon, Jun 22, 2015 at 3:10 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto: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<mailto: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
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The key to understanding is humility - my view !

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The key to understanding is humility - my view !

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Jordan Carter

Chief Executive
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