[CCWG-ACCT] Fundamental Differences Beteen SMM & MEM--RE: Summary Comparison Chart of Board Comments Matrix and Notes

[Phil Corwin]

Thanks for doing this Greg. It is very helpful (and Happy New Year).

And thank you for discerning that the Board may be urging that the WS2 work be shunted to the dead end swamp of a PDP. I think this would be a grave mistake, jeopardizing both cohesion and inertia. If anything like this was adopted I would urge a re-think and expansiomn of what should be in WS1 and thus assured of timely implementation.

As for your observation at the top of the second page, “Unclear what is meant by “community powers” (may be referring to Fundamental Bylaws)”, the answer can be found in the Memo on proposed Approach for Community Enforceability:

  *   MEM arbitration would only be for alleged violations of Fundamental Bylaws, while the CCWG’s SMM-based IRP would be available for alleged violations of any part of AOC or Bylaws. Under  the MEM proposal, for anything other than a Fundamental Bylaw allegation only the present IRP (which is limited scope and only advisory, at least according to the longstanding Board and Jones Day position – is that still the case post-.Africa?) would remain in place as the available, inadequate remedy.
  *   Under MEM, if the Board were found to have violated a Fundamental Bylaw it would be required to remedy that, but in a manner “within its discretion”. That could allow for a very watered down response that nonetheless might qualify as an acceptable remedy, and there is no clear way for community to challenge the Board’s decision. The SMM’s IRP allows for a binding decision to be ordered implemented by the Board.
  *   Access to courts is available under MEM only if the Board has failed to remedy after an adverse decision. But, as just noted, the discretion leeway might allow for a very weak ‘remedy’ that nonetheless could still be deemed sufficient to block access to the courts. Court access is assured under the SMM.

If the Board’s alternative were to be adopted I think it would be incumbent upon the CCWG to review and probably expand the number of Fundamental Bylaws, as they would be the only basis for invoking a MEM arbitration. That would of course have the downside of making more of the Bylaws subject to a higher threshold for change.

Given the input that the CCWG received from its lawyers, I remain skeptical that the MEM provides a model that creates adequate legal standing for court access. Even if it does, the individuals composing the MEM Issue Group would appear to have potential personal liability, although the MEM proposal says that ICANN will indemnify and hold them harmless due to that. Regardless of that offer, the individuals involved (heads of internal ICANN groups) may still hesitate to invoke MEM much more than under the framework of the CCWG’s SMM proposal because of the risk of being personally caught up in litigation – and potentially liable.

In that litigation liability regard, note Q. 14 in the FAQ document:
Q14: Does the MEM Issue Group possess the right to sue ICANN in order to enforce the MEM arbitration decision in court? If so, is there a risk that the MEM Issue Group can be sued?
A14: The capacity to sue comes along with the capacity to be sued, although it is highly unlikely that the MEM Issue Group would engage in any conduct that would be subject to litigation. In any event, ICANN will indemnify the MEM Issue Group, and will bear the fees and expenses that might be incurred in any lawsuit arising out of the enforcement of a MEM final arbitration decision. (Emphasis added)

Therefore, there is a possibility that in a very heated future disagreement, ICANN might express its view that the individual members of the MEM were potentially engaging in conduct subject to litigation and that invoking a MEM arbitration might invite a countersuit. That could certainly dampen the willingness to proceed. Even if the hold harmless and indemnify pledge bears out, who wants to be caught up in the misery of a lawsuit?

Summing up, as I read it, the scope of Board action subject to MEM-triggered arbitration is much narrower than under the CCWG’s proposal, and the Board retains very broad discretion to respond to an adverse MEM decision with a weak remedy that could nonetheless be sufficient to block access to court.

So the Fundamental Difference between the CCWG Proposal and the Board’s proposed alternative is not just replacement of the SMM with the MEM, all other things being equal. The scope of actions subject to MEM arbitration would be much narrower, the ability to compel the Board to take a particular action would be substantially diluted, and the individuals comprising the MEM would be exposed to litigation risk. I don’t see how that squares with the level of enhanced accountability deemed necessary by the CCWG.

That is my reading of what the Board has provided. If I am wrong in any aspect of that reading then I would appreciate being so advised.

Best to all,
Philip



Philip S. Corwin, Founding Principal
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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Sunday, September 13, 2015 3:03 PM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Summary Comparison Chart of Board Comments Matrix and Notes

Here is the PDF.

Greg

On Sun, Sep 13, 2015 at 3:01 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
All,

I've reviewed the Board's Comments Matrix and Notes in some detail.  I found it somewhat difficult to extract the key disagreements with and differences from our proposal, given the length and format of the document.

I've prepared a chart attempting to summarize all of the key disagreements/differences (and mentioning a few but not all of the key points of agreement as well). I've also inserted my own notes, as well.

I found this very helpful and I hope you will too.  If desired, I can put this up as a Google Doc if others want to refine it or comment on it collaboratively.  I'll send a PDF shortly.

Many of the Board's key points have been mentioned in prior discussions or documents.  There is one important point that I don't recall seeing earlier.

The Board essentially rejects the idea of Work Stream 2 and wants all of this work done using other ICANN community processes instead.  This is explained fully in point 47, but foreshadowed in a number of places throughout the document.

I hope you find this useful.

L'shana Tova and Happy New Year to those observing the holiday.

Regards,

Greg

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