[CCWG-ACCT] Question regarding UAs
Carlos Raúl Gutiérrez
crg at isoc-cr.org
Wed May 20 12:14:04 UTC 2015
Dear Alan,
I like your point about the differences between (SO/AC) directors and
the (Noncom) directors.
So far we have been told that once in the Board, all Directors are equal
and work by consensus, instead of following instructions of their
respective So/ACs. And I agree with you that this difference may create
weird differences in liability issues (that some courts may decide not
to take into account).
The question the would ve if (SO/AC) membership model is a small step
towards the two-tier Board, without calling is that? I don´t know of
many large corporation which have Boards as large as ICANNs, and there
is a point in asking if a two tier Board (German model) couldn´t be
more effective and have a better balance within itself.
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176
Skype: carlos.raulg
On 19 May 2015, at 23:21, Alan Greenberg wrote:
> Avri, I think that you are generally correct. We are putting this
> entire infrastructure in place because we want to be able to take
> ICANN or the Board to court if they do not follow the rules. I tend to
> agree with the auDA comment that if it ever gets to that stage, we are
> REALLY in trouble, and a simple court decision is not likelt to fix
> it.
>
> But that nothwithstanding, we supposedly ned that UA because they can
> take legal action. But if the UA representatives do not listen to the
> SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has
> no legal persona. So we are again left with a discontinuity where
> something is largely unenforceable and we have to take it on faith
> that they will do the right thing.
>
> Of course, the UA reps and the Board members we select are basically
> drawn from the same pool, perhaps separated by a few years.
>
> The difference between a Board member and a UA rep is the Board member
> has a duty to the corporation, and the UA rep can, in theory, be
> required to take instruction from the SO/AC. But enforcing that theory
> may be the rub.
>
> Alan
>
> At 20/05/2015 12:41 AM, Avri Doria wrote:
>> Hi,
>>
>> I think I understand the argument about members becoming that to
>> which
>> ICANN, and its Board, are responsible and accountable. From that
>> perspective it sounds really good.
>>
>> What I have having trouble understanding is an accountability
>> structure
>> were there is a discontinuity between the SOAC and the UA. If each
>> of
>> the Board designating SOAC were the UA, it think I would understand.
>> But I just do not see how the UA are accountable to the people and
>> organizations that participate in each of the SOAC. Yes, the SOAC
>> designates it UA representative, but how is (s)electing one of these
>> any
>> more accountable than (s)electing the Board as we do now. Don't we
>> just
>> move the perceived/possible unaccountability down a layer in the
>> hierarchy?
>>
>> I think I am as comfortable with complexity as the next person. And
>> I
>> understand how in computer science any problem can solved by adding
>> another layer of indirection, but in this case the extra layer we are
>> creating does not seem to really be accountable to anyone but itself,
>> except by (s)election procedures.
>>
>> I am sure I am missing some critical bit of understanding and hope
>> someone can explain the chain of accountability in the membership
>> model. I feel that we are still hand-waving a bit in the
>> explanations.
>> In a sense it seems as if we are creating a 'council' that is
>> omnipotent
>> in the powers it is given, except that they can somehow be replaced.
>>
>> Thanks and apologies for my persistent confusion.
>>
>> avri
>>
>>
>>
>> On 20-May-15 01:14, Jordan Carter wrote:
>> > Hi all
>> >
>> > This thread is useful to tease out some of the questions and
>> concerns
>> > and confusions with the UA model, and as rapporteur for the WP
>> > responsible for refining this part of the proposal I am reading it
>> avidly.
>> >
>> > I just want to take the opportunity to remind us all why membership
>> > (or something analogous) is an important aspect of the reforms we
>> are
>> > proposing - no matter the precise details.
>> >
>> > At the moment without members, ICANN is fundamentally controlled by
>> > the Board. The only external constraint is the IANA functions
>> contract
>> > with NTIA. The long list of community concerns and examples
>> detailed
>> > by our earlier work in this CCWG shows that even with that
>> constraint,
>> > accountability isn't up to scratch.
>> >
>> > We are working on a settlement without that NTIA contract.
>> > Accountability has to get better even *with* the contract.
>> > Fundamentally better, without it.
>> >
>> > Either we have a membership structure or some other durable
>> approach
>> > that firmly embeds the stewardship of ICANN and the DNS in the
>> ICANN
>> > community, or... we remain with Board control.
>> >
>> > Given ICANN's history, anyone who is advocating a continuation of
>> > Board control is arguing for a model that can't be suitably
>> > accountable, and that seems highly likely to fail over time, with
>> real
>> > risks to the security and stability of the DNS.
>> >
>> > A real, fundamental source of power over the company absent the
>> > contract *has* to be established. The membership model is the most
>> > suitable one to achieve that that we have considered so far.
>> >
>> > So: we need to be creative and thoughtful in how we make that model
>> > work in a fashion that disrupts ICANN's general operation as little
>> as
>> > possible. But the key there is "as possible." Real change is needed
>> > and much refinement and comment is needed.
>> >
>> > If there are proposals to achieve the same shift in control from
>> ICANN
>> > the corporation to ICANN the community, I hope they come through in
>> > the comment period. So far, none have - but there are still two
>> weeks
>> > of comments to go.
>> >
>> > cheers
>> > Jordan
>> >
>> >
>> > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm at linx.net
>> > <mailto:malcolm at linx.net>> wrote:
>> >
>> > This whole thread seems to have massively overcomplicated the
>> > question.
>> >
>> >
>> > Unless I have missed something, the only reason we need
>> "members"
>> > is to
>> > stand as plaintiff-of-record in a lawsuit against the ICANN
>> Board
>> > complaining that the Board has failed to adhere to the
>> corporations
>> > bylaws. Such a lawsuit would in reality be conducted by an SO
>> or
>> > AC, but
>> > a person with legal personality needs to act as
>> plaintiff-of-record.
>> >
>> > Why not simply proceed, as Samantha suggested, with the SOACs'
>> > Chairs as
>> > the members of the corporation? Could the Articles (or Bylaws,
>> as
>> > appropriate) not simply identify the SOACs' Chairs as the
>> members, ex
>> > officio and pro tempore?
>> >
>> > An SOAC Chair that refused to act as plaintiff-of-record when
>> required
>> > to do so by his SOAC could simply be replaced. Likewise a Chair
>> that
>> > went rogue and initiated a lawsuit without their consent.
>> >
>> > You can't make the SOAC a member without turning them into UAs,
>> > with all
>> > the attendent complexity. But I don't see that there should be
>> any
>> > such
>> > problem with designating the chair of a SOAC, who will be a
>> natural
>> > person, as a member of the corporation; the fact that the SOAC
>> is
>> > not a
>> > UA is then irrelevant.
>> >
>> > In the event that there were any dispute as to whether a
>> particular
>> > person is in truth an SOAC Chair, this would surely be a simple
>> > preliminary matter of fact for the court. It is surely beyond
>> dispute
>> > that if the Articles designated "Alan Greenberg" as the member,
>> it
>> > would
>> > be a matter of fact as to whether or not the person before the
>> > court was
>> > indeed Alan Greenberg; surely it is the same as to whether the
>> person
>> > before the court is "the current Chair of ALAC", if that should
>> be
>> > what
>> > is specified in the Articles?
>> >
>> > Malcolm.
>> >
>> > --
>> > Malcolm Hutty | tel: +44 20 7645 3523
>> > <tel:%2B44%2020%207645%203523>
>> > Head of Public Affairs | Read the LINX Public Affairs blog
>> > London Internet Exchange | http://publicaffairs.linx.net/
>> >
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>> > 21-27 St Thomas Street, London SE1 9RY
>> >
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>> > Trinity Court, Trinity Street, Peterborough PE1 1DA
>> >
>> >
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>> >
>> >
>> > --
>> > Jordan Carter
>> >
>> > Chief Executive
>> > *InternetNZ*
>> >
>> > 04 495 2118 (office) | +64 21 442 649 (mob)
>> > jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
>> > Skype: jordancarter
>> >
>> > /A better world through a better Internet /
>> >
>> >
>> >
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