[CCWG-ACCT] Question regarding UAs
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
Mon May 25 16:08:50 UTC 2015
Alan
You are not wrong
but it is incomplete. Even if one agrees to use binding
arbitration, there will always be a background right of access to the
courts. For one thing, one party to the arbitration might defy the
arbitrators award, requiring someone to go to court to enforce the judgment
(since arbitrators do not come with police powers). For another, one party
may dispute the terms of the contract and argue that the issue which the
other party seeks to arbitrate is outside the bounds of the arbitration
agreement in the first instance, and therefore the issue of the scope of the
contract itself can become subject to litigation.
So long as there are parties, there will be disputes and there will be
courts.
What you want, preferentially, is two things: 1) As clear a statement as
possible regarding the scope and substance of binding arbitration; and 2) A
judicial system where the courts systematically defer to arbitration and
refrain from inserting themselves into the process to the maximum extent
possible. So judicial systems may not be so withdrawn.
I can’t speak too much to the California system, though I do have a sense
that they favor arbitration by statute. I can tell you that in the US
Federal system, the preference for allowing arbitration to go forward is a
matter of law. The Federal Arbitration Act
(http://en.wikipedia.org/wiki/Federal_Arbitration_Act) has been on the books
since 1925. Supreme Court cases interpreting the statute have routinely
given it broad effect and ordered lower courts to refrain from disturbing
the contractual agreements between the parties as to arbitration. I have a
sense, albeit limited, that in continental judicial systems, the courts are
less deferential. But in truth it seems to me that it would be relatively
hard to find a legal jurisdiction where substantially greater deference
would be paid to the choice of arbitration than in the US.
[As an aside, of possible interest to some, this preference for arbitration
is often seen by consumer advocates as a bad thing – many of the mandatory
arbitration clauses that are the subject of litigation are ones that they
think are unjustly “imposed” on consumers e.g. by big manufacturers. One of
the underlying themes of this discussion is that private contractual
arrangements are generally superior to judicial resolution. While I firmly
agree with that, it is worth noting that it is not always the case
]
Cheers
Paul
Paul Rosenzweig
<mailto:paul.rosenzweigesq at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com
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VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
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From: Alan Greenberg [mailto:alan.greenberg at mcgill.ca]
Sent: Monday, May 25, 2015 12:40 AM
To: Chris Disspain; Becky Burr
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Question regarding UAs
I am entering a debate between two lawyers with some trepidation, but her
goes.
I know that in contracts, one can agree to use binding arbitration instead
of the courts. Can we do so here? With one exception. Members can go to
court to enforce a recall/dismissal of Board members. It strikes me that if
we can do that, we address all of the concerns.
Arbitration does not, I think, set a precedent that must be honored in the
future, so Chris's worry about the courts defining the ICANN mission is no
longer an issue.
The Board could still defy the community. But they could either discuss the
situation, as Chris is convinced would happen, or ultimately if they refuse,
or the outcome is not to the community's satisfaction, we have the right to
remove those members of the Board who are standing in the way (or the entire
Board). This could not be defied, because we COULD go to court over that.
Would this work?
Alan
At 24/05/2015 09:39 PM, Chris Disspain wrote:
Hi Becky,
So, that means that that in my scenario the community could go straight to
court at any point that the Board ‘refuses’ to act. I’m not saying that is
necessarily ‘bad’ but it’s important to understand. Not sure I understand
this. If the community vetoed a proposed budget, but the Board refused to
honor that veto, the community could seek to have its legal rights enforced
– either in court or through arbitration. But under a member/designator
model, the Board would be violating its legal obligation to honor the
community veto. Why would it do that?
Surely irrespective of the obligation set out in the bylaw being legally
enforceable, the Board would be obliged to refuse to honour the veto if it
was advised that to do so would mean that ICANN was acting outside of its
mission.
In the membership model the community could then go to court in California
and ask the court to require the Board to honour the veto and the court
would do so PROVIDED THAT it found that to do so was not outside the the
mission. That would become a binding, precedent setting interpretation of
ICANN’s mission by a US court.
In the non-membership model the community and the board would sit down
together and work out a way through.
Not sure I understand this. I don’t think the courts in California currently
have jurisdiction so I’m not sure that they can, today, involve themselves
as you suggest. Confused here. If ICANN violated its fiduciary duties,
breached a contractual obligation, or engaged in tortious conduct, a
California court – along with lots of other courts – would have
jurisdiction. With respect to fiduciary duties and contract breaches,
California law would likely apply wherever the case was brought, though
applicable law would vary in the case of tort claims. In the event the IRP
became binding, a claimant could go to Court in California to force ICANN to
honor the panel’s decision. Again, though, if the IRP decision was binding,
ICANN would have a legal obligation to honor it, so why would it refuse to
do so?
Yes, where there is a contract (registries, registrars) the California court
has jurisdiction. But we are not discussing that. We are discussing changing
the current structure so that the SOs and ACs have the right to make the
Board do the stuff they would be obliged to do pursuant to the new set of
bylaws.
You say, in the event that the IRP became binding, because the Board would
have a legal obligation to honour the decision, why would they not? I say,
if it is made binding under the fundamental bylaws, even if the Board could
not be legally forced to honour the decision, why would they not? I accept
they CAN refuse to honour it. Why WOULD they refuse to honour it?
I am confused.
Sorry for not being clear.
If ICANN refuses to honor a community veto of a budget or bylaw change, one
or more of the UAs/members could use the IRP or go to court. Why is that a
problem, if the budget has been vetoed with the support of the broader
community as required to veto in the first place?
So you’re saying legal action CAN be launched at any stage by a single
member irrespective of what the other members think?
More to the point, why would the Board refuse to honor a veto imposed
consistent with the requirements?
As I’ve said above, if the board is advised that to honour the veto is a
breach of their fiduciary duty then they would likely have to refuse.
We are making assumptions about lawlessness that seem odd to me. And if
the Board is willing to ignore its legal obligation to accept a properly
imposed community veto, why shouldn’t the members be able to enforce their
legal authority? If you are worried that one UA would claim that the
community had vetoed a budget when that wasn’t what happened, any lawsuit
could be pretty readily disposed of by affidavits from other UAs.
Not what I meant.
As I understand it, the membership model would mean that any member could go
to court in respect to the Board’s interpretation of any bylaw, not just the
fundamental ones. So, if one SO or AC member (or their shadow entity)
believed that a budget line item was outside of ICANN’s mission then as a
member that SO or AC could launch court proceedings in California for a
ruling as to whether that was or was not the case.
Am I correct in my understanding?
Cheers,
Chris
On 23 May 2015, at 03:05 , Burr, Becky <Becky.Burr at neustar.biz
<mailto:Becky.Burr at neustar.biz> > wrote:
I have added some questions and comments in blue italics below
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr at neustar.biz
<mailto:becky.burr at neustar.biz> / www.neustar.biz <http://www.neustar.biz/>
From: Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au> >
Date: Friday, May 22, 2015 at 5:29 AM
To: "Mathieu.Weill at afnic.fr <mailto:Mathieu.Weill at afnic.fr> "
<Mathieu.Weill at afnic.fr <mailto:Mathieu.Weill at afnic.fr> >
Cc: Accountability Community < accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Question regarding UAs
Hi Mathieu,
See below. And thanks!
Cheers,
Chris
On 22 May 2015, at 20:16 , Mathieu Weill <mathieu.weill at afnic.fr
<mailto:mathieu.weill at afnic.fr> > wrote:
Chris,
Thank you so much because I think this is a very useful discussion. I would
try and reformulate to check if we are communicating before turning to
lawyers or any further work :
1) The scenario to assess is the case where the community rejects a budget
because the community would like Icann to expand its actions into something
that the Community feels is within the Mission while the Board feels it is
outside of Icann's Mission, as described in the Bylaws. The Board would then
be "stuck" between the community and its perceived obligation to not mission
creep.
Basically, our discussion is starting to look like a stress test of this
particular scenario: what would the current accountability mechanism enable
? what enhancements or changes would be brought by the proposed
accountability framework ?
Yes, I agree that this is, in effect a stress test. My view is that such a
scenario under our current structures would be sorted out between us all.
2) It is clear to me that our initial report does NOT say that legal action
could only be undertaken if all other remedies have been exhausted (I don't
even think it would be legally feasible). Clearly this could not be
mandatory in all circumstances, but I think you could take steps to
encourage arbitration over resort to court if it really made sense to do
that.
So, that means that that in my scenario the community could go straight to
court at any point that the Board ‘refuses’ to act. I’m not saying that is
necessarily ‘bad’ but it’s important to understand. Not sure I understand
this. If the community vetoed a proposed budget, but the Board refused to
honor that veto, the community could seek to have its legal rights enforced
– either in court or through arbitration. But under a member/designator
model, the Board would be violating its legal obligation to honor the
community veto. Why would it do that?
3) You are asking clarification of several questions :
* what the limited grounds are for a California Court to overturn an
arbitration (IRP) decision ? (my own recollection of the IRP memos we
received from counsel was : arbitration scope or procedure)
Not sure I understand this. I don’t think the courts in California currently
have jurisdiction so I’m not sure that they can, today, involve themselves
as you suggest. Confused here. If ICANN violated its fiduciary duties,
breached a contractual obligation, or engaged in tortious conduct, a
California court – along with lots of other courts – would have
jurisdiction. With respect to fiduciary duties and contract breaches,
California law would likely apply wherever the case was brought, though
applicable law would vary in the case of tort claims. In the event the IRP
became binding, a claimant could go to Court in California to force ICANN to
honor the panel’s decision. Again, though, if the IRP decision was binding,
ICANN would have a legal obligation to honor it, so why would it refuse to
do so?
* whether the proposed membership model would enable each UA to
initiate legal action against Icann irrespective of what other parts of the
community think ? (my understanding is : yes. But I guess that today if
NARALO felt a decision was causing them prejudice they could sue Icann as
well, so maybe we should reframe the question into : would there be a
significant increase of the risk for Icann to be sued ?)
I don’t know what the status of NARALO is (are they a legal entity) and I
don’t know if they could in fact bring proceedings against ICANN. And if
they could the question would be ‘about what could they sue?’. Obviously, a
gTLD registry has a contract with ICANN and could therefore sue ICANN (and
vice versa) in respect to the contract. But I don’t think they could sue in
respect to ICANN’s bylaws generally. And neither I suspect could NARALO.
So, yes, the question;
would there be a significant increase of the risk for Icann to be sued ?
is a relevant one provided you and I are right and any member will be able
to sue ICANN about any interpretation ICANN makes about its bylaws. Thinking
about it, we should probably get clarity on all the areas that a member
could sue on.
I am confused. If ICANN refuses to honor a community veto of a budget or
bylaw change, one or more of the UAs/members could use the IRP or go to
court. Why is that a problem, if the budget has been vetoed with the
support of the broader community as required to veto in the first place?
More to the point, why would the Board refuse to honor a veto imposed
consistent with the requirements? We are making assumptions about
lawlessness that seem odd to me. And if the Board is willing to ignore its
legal obligation to accept a properly imposed community veto, why shouldn’t
the members be able to enforce their legal authority? If you are worried
that one UA would claim that the community had vetoed a budget when that
wasn’t what happened, any lawsuit could be pretty readily disposed of by
affidavits from other UAs.
Can you please confirm that we are on the same page here ?
Assuming you’re fine with the above the, yes, we are on the same page.
best
Mathieu
Le 22/05/2015 08:47, Chris Disspain a écrit :
Mathieu,
You've asked a series of questions which I have thought about very
carefully. I acknowledge that the scenario I suggest is unlikely but your
questions have led me to a further question which I pose below my responses
to yours.
- In your scenario the community would "mission creep". I am not clear how
in our report the community would direct the Board to do X. Community powers
as we have defined them are restricted to reject / review on budgets or
bylaws. Could you clarify this part of the scenario ?
I do believe that it is feasible that the Board could refuse the follow a
community veto on a budget item because the board believes to do so would be
a breach of the Board’s fiduciary duties to act in the interests of ICANN in
accordance with ICANN’s mission.
- If the Board refuses to act on the arbitrator findings, why would the
community turn to California Court instead of recall the Board ?
They may well turn to the recall mechanism but would they HAVE TO. Is it
anticipated that the resort to legal action would only be possible once ALL
OTHER REMEDIES have been exhausted? In other words, in effect the only thing
a court would ever be asked to do is to enforce the communities spill of the
Board? Or is it perhaps anticipated that the community to resort to the
court at any stage along the escalation process?
Given that there was a a binding arbitration decision directing Icann to do
X, my understanding was that the court of California would have very limited
grounds to turn the decision around. Is that not already addressing the
concern of allowing a court of california to decide on what is or is not
within Icann's mission ?
The key point is that irrespective of whether there are “limited grounds”
for the court to reverse a decision or take a decision contrary to the views
of the community,it could happen. The ultimate authority becomes the
Californian legal system.
And finally, is it not the case today that a Court of California could make
such a binding decision ?
I don’t believe so but stand to be corrected.
My question is an extension of the point I’ve made above about when the
community can go to court.
Am I correct in my understanding that once we become a member based
organisation, it would be open to any of the member UAs to use the court
system to bring an action against ICANN. In other words if the ALAC UA (and
I’m just using ALAC as an example) was concerned about ICANN’s
interpretation of one of its non-fundamental by-laws then ALAC UA would have
legal standing to bring an action in California irrespective of what other
members think?
May I ask that we get legal clarification on this point please?
Cheers,
Chris Disspain | Chief Executive Officer
.au Domain Administration Ltd
T: +61 3 8341 4111 | F: +61 3 8341 4112
E: ceo at auda.org.au <mailto:ceo at auda.org.au> | W: www.auda.org.au
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ozXIaECldB7Rc&e=>
auDA – Australia’s Domain Name Administrator
On 21 May 2015, at 17:14 , Mathieu Weill <mathieu.weill at afnic.fr
<mailto:mathieu.weill at afnic.fr> > wrote:
Dear Chris, All,
Many thanks for explaining the concern through this step by step scenario.
This is taking us closer to a stress test approach, which is not only
valuable but also mandatory for our group, as per our Charter. I understand
your concern is (quoting your email) "handing ultimate authority to a state
based American court and allowing it to make binding and precedent setting
decisions about the interpretation of ICANN’s mission."
There is however something I do not understand in your "steps":
Le 21/05/2015 03:45, Chris Disspain a écrit :
Second, I would like to use a step-by-step scenario to explain where my
concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and
through a vote of that meeting the required threshold for support, directs
the Board to do X
2. The Board refuses to do X because it maintains that X is outside of the
mission of ICANN
3. The community triggers escalation mechanisms
4. Escalation proceeds to binding arbitration (as defined by another
fundamental bylaw)
5. The arbitrator finds in favour of the community and directs ICANN to do X
6. The Board refuses to act, citing, again, that it believes the action is
outside of ICANN’s mission
7. After the necessary community votes etc., the community now heads to
court. In the State of California.
I have four questions :
- In your scenario the community would "mission creep". I am not clear how
in our report the community would direct the Board to do X. Community powers
as we have defined them are restricted to reject / review on budgets or
bylaws. Could you clarify this part of the scenario ?
- If the Board refuses to act on the arbitrator findings, why would the
community turn to California Court instead of recall the Board ?
- Given that there was a a binding arbitration decision directing Icann to
do X, my understanding was that the court of California would have very
limited grounds to turn the decision around. Is that not already addressing
the concern of allowing a court of california to decide on what is or is not
within Icann's mission ?
- And finally, is it not the case today that a Court of California could
make such a binding decision ?
Best
Mathieu
As I understand it, the role of the court in this scenario would be to
determine whether the Board is acting in a way that is serving the public
interest within ICANN’s mission. It would not be to decide whether, on
balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the
meaning of ICANN’s mission and the way ICANN acts under that mission by
using the multi-stakeholder process and by compromise and nuanced decision
making.
If we agree to the CCWG recommendations we will not be handing ultimate
authority to the members but rather we will be handing ultimate authority to
a state based American court and allowing it to make binding and precedent
setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission
to be held up to scrutiny and have decisions made, at the highest level,
through such a mechanism? Whilst that may give comfort to, for example, US
members of the intellectual property community or US listed registries, it
gives me no comfort whatsoever.
Cheers,
Chris Disspain | Chief Executive Officer
.au Domain Administration Ltd
T: +61 3 8341 4111 | F: +61 3 8341 4112
E: ceo at auda.org.au <mailto:ceo at auda.org.au> | W: www.auda.org.au
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au_&d=AwMF
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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr at neustar.biz
<mailto:Becky.Burr at neustar.biz> > wrote:
The “enforceability" issue is not about litigation at all, and it isn’t
really about whether the Board or some newly invented group is more likely
to get it right. Rather, it’s about checks and balances. Without the
membership structure, the revised bylaws that empower the community to block
certain actions, for example, are by definition advisory – they impose no
legal obligation whatsoever on the Board and staff. I don’t dispute that
the Board would have a compelling interest in respecting community input,
but as a legal matter without the membership structure, the Board would be
required to treat any community vote to block, for example, as merely
advisory and would have an affirmative obligation to do what it concludes is
consistent with its fiduciary duty. The membership model affirmatively
shifts some of that fiduciary responsibility to the community. It’s not a
statement of who is right or wrong, but who has authority. Steve raises a
reasonable question about how the members/unincorporated associations are
accountable to their respective communities. But IMHO, the legitimate
questions and concerns in this debate are getting obscured by polarizing
language and assertions that it’s inappropriate to express a particular
point of view.
The argument that there are no examples of situations that did result or
would have resulted in the community acting as one against an action or
decision of the ICANN Board.” The community has never had any authority or
tool to do so, so the fact that it never has is irrelevant and the assertion
that it would not have is speculation. I certainly would have tried to get
the community to overturn the Board’s decision to abandon the substantive
standard for IRPs in favor of the “good faith” test. As it happens, none
of the existing review and redress mechanisms would have worked in that
case, and they probably wouldn’t work in the future either.
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr at neustar.biz
<mailto:becky.burr at neustar.biz> / www.neustar.biz <http://www.neustar.biz/>
From: Steve DelBianco <sdelbianco at netchoice.org
<mailto:sdelbianco at netchoice.org> >
Date: Wednesday, May 20, 2015 at 12:37 PM
To: "Chartier, Mike S" < mike.s.chartier at intel.com
<mailto:mike.s.chartier at intel.com> >, Steve Crocker <steve at shinkuro.com
<mailto:steve at shinkuro.com> >, Keith Drazek <kdrazek at verisign.com
<mailto:kdrazek at verisign.com> >
Cc: Accountability Community < accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Question regarding UAs
I don’t think there’s any question that the Board’s primary duty (not their
only duty) is to ICANN the Corporation. In addition to Mike’s citation of
ICANN bylaws Section 7 (below), see ICANN’s Management Operating Principles
(2008):
"The third and perhaps most critical point of tension is between the
accountability to the participating community to perform functions in
keeping with the expectations of the community and the corporate and legal
responsibilities of the Board to meet its fiduciary obligations.”
Source: ICANN Accountability & Transparency Frameworks and Principles,
Jan-2008, p.5, at
https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles
-10jan08-en.pdf
<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste
m_files_files_acct-2Dtrans-2Dframeworks-2Dprinciples-2D10jan08-2Den.pdf&d=Aw
MGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&
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sFEbRqTO3RL3Jew&e=>
From: "Chartier, Mike S"
Date: Wednesday, May 20, 2015 at 9:56 AM
To: Steve Crocker, Keith Drazek
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Question regarding UAs
No comment on actual practice, but from a textual basis (which is what
matters now since we are debating new text), I can’t see any inconsistency
between the following statements:
“Directors shall serve as individuals who have the duty to act in what they
reasonably believe are the best interests of ICANN and not as
representatives of the entity that selected them, their employers, or any
other organizations or constituencies.”
“the ICANN Board, which has a fiduciary obligation to first serve the
interests of the corporation,”
From: accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org> [
mailto:accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org> ] On Behalf Of
Steve Crocker
Sent: Wednesday, May 20, 2015 9:47 AM
To: Drazek, Keith
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Question regarding UAs
I didn’t take it personally. I took it as a factually inaccurate statement
that creates misunderstanding. Future boards are bound by the same rules as
the past and current boards. The language you used is taken by many as a
basis for believing there is a significant difference in alignment toward
public responsibility between the ICANN Board and some newly invented
grouping of community members. It ain’t so and it’s inappropriate to
suggest so.
Steve
On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek at verisign.com
<mailto:kdrazek at verisign.com> > wrote:
Steve,
With all due respect, I think you’re taking this too personally and/or
making it too personal. This is not about the current ICANN Board.
None of us know what future ICANN Boards will do, or what future ICANN
Boards will permit ICANN’s management to do. Will future Boards always
exercise appropriate oversight over management? Could there be instances
where ICANN’s legal counsel advises a future Board to make a decision that
is counter to the interests of the community to protect the financial
interests of the corporation?
I see the proposed community membership structure simply as a check on the
power of the Board, nothing more. It’s not about “controlling” or replacing
the Board. The Board has its legitimate function, but its decisions cannot
be unchallengeable. The community must have the ability to tell the Board it
got a decision wrong and to enforce the will of the multi-stakeholder
community in rare/limited instances and based on a very high threshold of
community agreement/consensus.
I would certainly trust the proposed community members, representing their
SOs and ACs, to be balanced, inclusive and trustworthy in protecting the
interests of the overall community -- in their role as the aforementioned
check on the powers of the Board. Not as a replacement.
Would you trust a future Board of sixteen unknown individuals more than you
trust the multi-stakeholder, bottom-up, consensus-based community and
process? It appears so.
I stand by and reaffirm my previous email. I hope my clarification helps.
Sincerely,
Keith
From: Steve Crocker [mailto:steve at shinkuro.com]
Sent: Wednesday, May 20, 2015 8:27 AM
To: Drazek, Keith
Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross Community;
mshears at cdt.org <mailto:mshears at cdt.org> ; egmorris1 at toast.net
<mailto:egmorris1 at toast.net>
Subject: Re: [CCWG-ACCT] Question regarding UAs
On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek at verisign.com
<mailto:kdrazek at verisign.com> > wrote:
Hi Chris,
I think there's a fundamental flaw in your assessment. You appear to be
looking at this question through the lens of the past and present, where
NTIA holds the enforcement function ("enforceability") through its ability
to rebid and transfer the IANA functions contract if the ICANN Board and
management acts inappropriately. That is the existing and necessary check on
the Board's decision-making power.
Without NTIA in its current role, the community MUST have the ability to
check the Board's power, and the only way to secure that check is to create
legal enforceability. Otherwise, the Board has ultimate authority, even if
its decisions are inconsistent with the interests and desires of the
community ICANN is supposed to serve.
You are proposing a transfer of power from NTIA to the ICANN Board, which
has a fiduciary obligation to first serve the interests of the corporation.
Alternatively, proponents of legal enforceability are in favor of
transferring final authority to ICANN's multi-stakeholder community.
Keith, Edward and Edward,
We have covered the point above several times and it’s long past time to
stop throwing this half-trust around. Yes, ICANN is legally a corporation,
and, yes, directors of a corporation have a duty to protect the corporation.
But that generality has a far different
meaning in a for profit corporation like Verisign than it does in a
not-for-profit public benefit corporation like ICANN. The directors are
obliged to pursue the purpose and mission stated in the incorporation papers
and the bylaws. The directors serve the community, and we do so by
exercising oversight over the corporation toward that end.
There will always be differences of opinion about the particular details,
but those sorts of differences of opinion will arise in *any* governance
model. The prevailing assumption in much of the correspondence on this list
is that the proposed members will somehow be more balanced, more inclusive
and more trustworthy in protecting the interests of the overall community
than the ICANN Board is. That’s simply false. And I think you know that it
is.
Please correct yourself and apologize.
Thanks,
Steve
We should all be looking at this through the lens of the future, when NTIA
no longer holds the tether and is only participating through the GAC. How do
we, the multi-stakeholder community, ensure that ICANN and its future Boards
and management are truly accountable once the NTIA back-stop is gone?
The answer is to ensure the Board's decisions, in very limited areas, can be
challenged and overturned by a significant majority
of the community. We need to protect against the "catastrophic" scenario you
referenced. According to our independent legal advisors, the best (and
perhaps only) way to guarantee this is through legal enforceability.
You asked, "Is addressing this most unlikely scenario worth the significant
structural changes a membership model would require?" I believe the answer
is yes. Not only worth it, but necessary.
Regards,
Keith
On May 20, 2015, at 2:40 AM, Chris Disspain <ceo at auda.org.au
<mailto:ceo at auda.org.au> > wrote:
For clarity, the last sentence of paragraph 8 below should read:
"However, I cannot think of a single example of a failure throughout the
history of ICANN that did result or would have resulted in the community
acting as one against an action or decision of the ICANN Board."
Cheers,
Chris
On 20 May 2015, at 16:13 , Chris Disspain <ceo at auda.org.au
<mailto:ceo at auda.org.au> > wrote:
Jordan, All,
Thank you Jordan, for attempting to bring some focus to the current
discussion about the UA model, membership structures and all of the related
issues.
First of all, I want to acknowledge that I concur with you on a number
points.
I agree that we need to develop a model that disrupts ICANN’s operation as
little as possible. We can argue about how much disruption is either
possible or preferable, but the principle is agreed.
I also agree that levels of accountability are not “up to scratch” and,
irrespective of the model we arrive at post-transition, these need to be
improved. Many of the improvements proposed by the CCWG: to the IRP,
reconsideration mechanisms and the role of the ombudsman, the introduction
of fundamental bylaws and binding arbitration, and the empowerment of the
community to spill the ICANN Board, are also supported.
However, where I disagree with you is in respect to the absolute need for an
additional mechanism, to supersede the current IANA functions contract, in
order to ensure that the community can ‘control’ the Board because it has
the right to bring a legal action in a US court.
I disagree with the characterisation that the purpose of the CCWG’s work is
to wrest “control” from the ICANN Board and deliver it to the community.
>From your email, I gather that you are fundamentally tying the concept of
control to “enforceability”, neither of which are goals for the current
process. Rather, I believe we are aiming to deliver a structure where ICANN
and its Board are held accountable to the community, via the number of
improvements I mentioned above.
The need to assert absolute “control” or enforceability could only arise in
the most catastrophic of circumstances. If we assume a situation where
proposed mechanisms for escalation, independent review, binding arbitration
and direct instruction by the SOs and ACs are not acknowledged by ICANN,
wouldn’t the entire multi-stakeholder model be irreparably broken? Is
addressing this most unlikely scenario worth the significant structural
changes a membership model would require?
Further, you refer to a “long list” of community concerns about ICANN’s
current operations. I wonder whether these concerns are actually held by
individuals (or individual constituencies) on particular issues and have
been aggregated in to a larger picture of overall community dissatisfaction?
Concerns by distinct groups on particular topics can certainly be dealt with
by the increased robustness proposed to ICANN’s bylaws and operations.
However, I cannot think of a single example of a failure throughout the
history of ICANN that did result or would have resulted in the community as
one against an action or decision of the ICANN Board.
To be clear – I am 100% supportive of improvements to accountability. I
believe that the CCWG has initiated extremely useful work in identifying
these mechanisms.
I remain unconvinced regarding the argument that
accountability=control=enforceability, and the subsequent recommendations of
the CCWG that arise from this assumption.
Cheers,
Chris
On 20 May 2015, at 15:33 , Jordan Carter <jordan at internetnz.net.nz
<mailto:jordan at internetnz.net.nz> > wrote:
We need legal persons to be members of ICANN.
They can be individual humans or they can be organisations.
UAs are the lightest touch, most easily controlled, non-human form of person
that can fit this mould.
I do not understand the propensity of parts of our community to
over-complicate things that look reasonably straight
forward from other points of view. Has ICANN always been like this? (Answers
own question - it can't have been, otherwise it would never be organised the
way it is today....)
cheers
Jordan
On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg at mcgill.ca
<mailto:alan.greenberg at mcgill.ca> > 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>
> < mailto: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.
>
> --
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