[CWG-Stewardship] Do we really need a Contracting Co.?

Thu Dec 4 15:35:43 UTC 2014

Milton:

There is no clear rationale for avoiding moving forward with the Contact
Co. at the moment because there are still many questions to be answered
regarding the composition, structure, jurisdiction, etc. for such
organization. Many questions have been arised  as to what this organization
is going to look like.

About the separability principle: According to the latest principle draft
document, this principle states:

    1. *"a. Seperability:  any proposal must ensure the ability:*
    1. *i. To separate the IANA functions from the current operator if
         warranted and in line with agreed processes;  and*
         2. *ii. To convene a process for selecting a new operator.*

*                 Seperability should persist through any future transfer
of the IANA functions.  (Note the current NTIA contract requires such
separation.)"*
I am not a person with legal background but I can presume (until proven
wrong) that it is possible to create internal mechanisms within ICANN to
satisfy this principle without risk.Strawman proposal 1
<https://community.icann.org/download/attachments/49352017/StrawmanMatrix%20%28with%20comments%29%2017%20Nov.docx?api=v2>
presented such a case but it did not have to much traction in Frankfurt at
that moment.

-ed

On Thu Dec 04 2014 at 10:52:05 AM Milton L Mueller <mueller at syr.edu> wrote:

>  Maarten
>
> I think this proposal is not viable. In effect, it makes the ICANN board
> the contracting authority for the IANA functions, thus eliminating the
> separability principle. You try to patch this problem in a kludgy way by
> saying that the MRT can “order the ICANN board” to give up the IANA
> function, which in effect makes the MRT a continuing legal entity, and
> paves the way for an ongoing power struggle should the MRT and board come
> into conflict over the future control of IANA.
>
>
>
> This is yet another example of people tying themselves in knots and
> putting at risk the separability principle in order to avoid the simple
> expedient of creating a Contract Co. But why do you fear the Contract Co
> so  much? No clear rationale for avoiding this has ever been put forward.
>
>
>
> If you want to be able to move the IANA functions contract it is much
> cleaner and simpler to have an independent, separate contract co.
>
>
>
> --MM
>
>
>
> *From:* cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-
> bounces at icann.org] *On Behalf Of *Maarten Simon
> *Sent:* Thursday, December 4, 2014 8:56 AM
> *To:* 'Eduardo Diaz'; Holly Raiche
>
>
> *Cc:* cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] Do we really need a Contracting Co.?
>
>
>
> Hi all,
>
>
>
> I am of the same opinion and wonder, not noing much about Californian
> corporate law, if we could find a solution in adding specific elements to
> ICANN’s bylaws specifically aimed on the IANA function.
>
>
>
> If we could arrange via the bylaws that the ICANN board explicitly has to
> follow orders from a MRT-like structure, we might not need a contract but
> have an (internal) MoU/SLA or whatever. If the ICANN board would at a
> certain moment in time still decide not to follow orders of the MRT, I
> would assume it may be sued by affected parties for violating its own
> bylaws. We further may dictate in the bylaws that ICANN has to give up the
> IANA function if decided by this MRT and of course seal it by dictating
> that these specific articles may only be changed with the explicit consent
> of the MRT.
>
>
>
> As I said, I have no clue if such a solution would be possible under
> Californian law. Under my legal system I think it would.
>
>
>
> Best,
>
>
>
> Maarten
>
>
>
> *From:* cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-
> bounces at icann.org <cwg-stewardship-bounces at icann.org>] *On Behalf Of *Eduardo
> Diaz
> *Sent:* woensdag 3 december 2014 1:19
> *To:* Holly Raiche
> *Cc:* cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] Do we really need a Contracting Co.?
>
>
>
> Holly and all:
>
>
>
> I have the same questions and concerns. Are we taking the route of a
> Contrac Co, because is what NTIA is expecting to see as part of the
> proposal or is it because concerns of ICANN accountability. My impression
> is the second.
>
>
>
> -ed
>
>
>
> On Tue, Dec 2, 2014 at 7:12 PM, Holly Raiche <h.raiche at internode.on.net>
> wrote:
>
> Seun
>
>
>
> You have summed up the issue wonderfully.
>
>
>
> Yes, we appear to be going down the second route.  But there are still
> questions around that route.  Alan’s (and Olivier’s and many other's)
> inputs have asked hard questions about the route - as have I.  In
> particular, I asked about the proposed Contract Co.  If it is to be
> created, what is to be its nature, size, powers, funding.  From Greg, it
> emerged that what was envisaged was a shelf company and the multi
> stakeholder processes under its umbrella would be the mechanisms of
> accountability.  Since then, it appears that the Contract Co will be more
> than a shelf company, so the many questions about its nature, powers,
> funding remain.  And without answers, I am not sure why the first
> alternative - fixing the accountability mechanisms - has been rejected.  It
> appears we are hoping the creation of a legal entity (however small) will
> solve problems.  I remain to be convinced.
>
>
>
> Holly
>
>
>
> On 3 Dec 2014, at 7:21 am, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:
>
>
>
> Hi Chuck,
>
> Thanks a lot for sharing this url....its really useful and i am going to
> hope that the accountability team are looking at scenarios like that to fix
> ICANN. Inview of this, there are generally 2 routes:
>
> - Fix the accountability mechanisms within ICANN and let the NTIA role
> naturally go away
>
> - While the accountability mechanism is yet to be fixed, provide a means
> by which IANA can still be moved out of ICANN
>
> I presume we are currently going the second route at the moment. So a
> question that i may ask is, will it not be better to work towards the first
> route through the second route? This will mean maintaining the ability to
> move IANA from current operator with an external body (can be an existing
> body like ISOC, IETF etc) or the lightweight (Contracting Co earlier
> proposed) and then provide certain principles/mechanisms that this CWG
> expect to have been addressed within specific time-frame.
>
> That will give ICANN (and its community) enough time to work on improving
> its accountability measures within the timeline indicated by this CWG.
>
> Regards
>
> On Tue, Dec 2, 2014 at 2:05 PM, Gomes, Chuck <cgomes at verisign.com> wrote:
>
> Seun,
>
>
>
> Please see the letter I sent to Fadi in 2013: https://www.icann.org/
> resources/correspondence/gomes-to-chehade-2013-08-30-en .
>
>
>
> Chuck
>
>
>
> *From:* cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-
> bounces at icann.org] *On Behalf Of *Seun Ojedeji
> *Sent:* Tuesday, December 02, 2014 3:57 AM
> *To:* Avri Doria
> *Cc:* cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] Do we really need a Contracting Co.?
>
>
>
> On Tue, Dec 2, 2014 at 7:33 AM, Avri Doria <avri at acm.org> wrote:
>
>
>
> On 02-Dec-14 07:16, Seun Ojedeji wrote:
>
> I also don't understand the view that ICANN community and corporate are
> separate.
>
>
> The ICANN Board and Staff are independent of the Community and can
> overrule the community either by a vote of the Board, or by calling an
> action 'implementation' that does not require community agreement.
>
>
>
> Okay, may i ask if this is happening at the moment and what the NTIA role
> has been in making sure it does not happen? because what we are trying to
> transition is the NTIA role and not ICANN management itself....if there is
> something that needs to be fixed in the ICANN structure then it could be
> put in the requirement for transition (most of which should be looked into
> by the accountability cwg).
>
>
>  especially since the Board, given its understanding of the its fiduciary
> responsibility sees itself as NOT representing the community. Adn the staff
> is governed by a CEO that is not subject, in any way, to community
> appproval in hiring or contract renewal.  The Community has NO influence
> over ICANN Staff.
>
>
>
> Well in the RIR world the board (by by-law) acts in the interest of the
> organisation. They may also choose not to listen to the community but they
> usually wisely choose otherwise.... ;).
>
>
>
> What does that mean? and how is ICANN community different from a typical
> RIR community.
>
> In the RIRs there is no body with a vote that can overrule the will of the
> community in policy making.
>
>
>
> The RIR board by the by-law could decide not to approve a policy proposal,
> its just that they have not had any reason to exercise such powers. So if
> you are saying there has been consistence instances where a policy that
> achieved consensus in the ICANN community was overruled by the board, then
> there is definitely something wrong and will be good to have an example of
> such scenario to understand why they took such action and determine how to
> avoid such in future. This is how we build the organisation from inside
> especially if we understand that ICANN is the home for gTLD
>
>
>
> Please when you think of who pays, think of it from the customer
> perspective, think of participation, think of the resources that's already
> been expended in this current ICG process.
>
>
> How does the contractor paying hurt the consumers?
>
>
>
> I think it will be safer to answer this with another question, where will
> the contractor get the money to pay from?
>
>
>
>
> I persist in seeing the only real possibility of capture in a massively
> multistakeholder body is that the community process can be captured by
> ICANN corporate decisions made that disregard the community's consensus,
> and that is what we need to protect against.
>
>
>
> Looks like you are now referring the MRT to be a MASSIVE multi-stakeholder
> body, please can we fashion out the composition and charter of this
> organisation so we appreciate what we are looking at. It sure seem there is
> going to be a lot of mechanism required to ensure that the multistakeholder
> body is indeed inclusive.
>
> Regards
>
>
> avri
>
>
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>
>
>
> --
>
> ------------------------------------------------------------------------
>
>
>
> *Seun Ojedeji, Federal University Oye-Ekiti web:      *
> *http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/> **Mobile:
> +2348035233535 <%2B2348035233535>*
> *alt email: <http://goog_1872880453/>seun.ojedeji at fuoye.edu.ng
> <seun.ojedeji at fuoye.edu.ng>*
>
> The key to understanding is humility - my view !
>
>
>
>
>
>
> --
>
> ------------------------------------------------------------------------
>
>
>
> *Seun Ojedeji, Federal University Oye-Ekiti web:      *
> *http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/> **Mobile:
> +2348035233535 <%2B2348035233535>*
> *alt email: <http://goog_1872880453/>seun.ojedeji at fuoye.edu.ng
> <seun.ojedeji at fuoye.edu.ng>*
>
> The key to understanding is humility - my view !
>
>
>
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