[CWG-Stewardship] Concern with Contract Co.

[Greg Shatan]

Olivier,

I think we did look at the "trust" proposal on the email list before
Frankfurt.  Indeed, I think many of the aspects of the trust proposal have
made their way into the current proposal (other than the use of a "trust"
entity).  Avri points this out in this thread.

I think that the current proposal amalgamates aspects of many of the other
proposals that were on the table during the course of this proposal.  This
kind of "magpie" approach is what was expected, and I think it worked.
Frankly, I don't think an "internal to ICANN" proposal was ever put on the
table within the group prior to Frankfurt in any kind of tangible, concrete
fashion.

As for the entity vs. legal entity issue -- I think we've beaten this to
death by now.  If we have a contract, we need a legal entity to enter into
it with the IANA Functions Operator.  So, while it is not a done deal that
Contract Co. is a non-profit corporation (though I don't see a better form
suggested), it is a done deal in this general structure that Contract Co.
is a legal entity.

Specifically, there are a number of technical/legal reasons a trust *per se*
is ill suited here.  There needs to be a Settlor (aka Grantor or
Trustmaker) who needs to contribute an already existing piece of property
(owned by the Settlor) to the Trust at the time of its formation.  The
Beneficiary of the trust must be an entity that is capable of taking and
holding title to the property (i.e., it must be a legal entity).  I've
tried to think of ways to make it work, but it just keeps feeling like a
square peg in a round hole.  (Also keep in mind that a Trust is a legal
entity, created in a certain jurisdiction.)  Nonetheless, the idea of a
lightweight, limited-purpose entity, which originated in the "trust
proposal," made its way into the current proposal, as did other aspects of
the trust proposal.

This should not be viewed as a boxing match between proposals, where it is
one or the other.  This is a fundamental mischaracterization of the
process.  Rather, the process should be viewed like a table full of
building blocks, where loose pieces (wherever they came from originally)
are put in place to fill needs as the proposal comes together.  Continuing
that analogy, it is less likely that pieces put on the table after the
proposal has been built will make their way in, unless they are superior
solutions to existing components.  Pieces that require the entire proposal
to be scrapped and started over are not likely to be looked at as favorably
by many at the table (except by their contributors) as they would have been
earlier in the process.  I'm not saying these are off the table -- but they
are not as likely to be picked up from the table.

Finally, I would disagree with your characterization of what happened in
Frankfurt, except for your statement that "warnings ... gained no traction
for various reasons which I would not attribute to Groupthink."  I agree
this should not be attributed to Groupthink, but rather to legitimate
reasons for lack of traction.  Further, I think certain warnings not only
"gained traction" but contributed to improving the proposal -- which is how
this should work.

Greg

On Sat, Nov 29, 2014 at 4:12 AM, Olivier MJ Crepin-Leblond <ocl at gih.com>
wrote:

> Dear Greg,
>
> On 29/11/2014 07:05, Greg Shatan wrote:
> > It is certainly my recollection that there were some discussions that
> > involved alternatives to creating a corporation (whether another type
> > of legal entity, such as a trust, or a group that had no legal status,
> > such as a committee).  It was even suggested that an existing
> > organization, such as the IETF (not a legal entity, actually) or ISOC
> > or the IETF Trust (which exists to hold and license IPR), could be
> > used to contract with the IANA Functions Provider.  I think these
> > tended to fall away and did not find traction as we moved along,
> > especially as the use of a contract came to the fore, which required
> > an entity capable of contracting.
>
> I do not recall having a real stab at the alternatives. The "Trust"
> model was never given a chance to be discussed. Neither was the option
> of keeping the contracting function within ICANN with internal
> mechanisms that might create a linked entity like the ASO/NRO using
> MoUs. A lot of ICANN's model is based on these MoUs. Or a model based on
> SLA, processes and obligations which automatically trigger remedial
> processes overseen by a neutral organisation has not been discussed either.
>
> Instead, as Guru very correctly described, we ended up with reaching a
> model of entities which were initially entities in the wider sense of
> the term (hence avoiding the use of the term "bodies" which could be
> seen as being a legal entity) and working on the functions of 4
> entities. (in addition to the IANA Operator itself)
> The 4 entities are described on the flowchart as:
> - IANA Customer Standing Committee (CSC)
> - IANA Periodic Review Team (PRT)
> - Independent Appeals Panel for Policy Implementation (IAP)
> - IANA Contracting Entity
>
> They are all marked as "entities" so I never felt that any final
> decision had been made on whether they would be incorporated.
>
> I also applaud Guru's overall description of the Frankfurt meeting. He
> also points out that multistakeholder models appear to be driven by lack
> of time. Only this is no small decision that will marginally affect the
> future of the naming functions. What is designed here needs to withstand
> the test of time and any future challenges. Designing this by jumping
> into the first solution without considering other solutions is dangerous
> - especially when it might well have been the result of Groupthink.
> During the meeting I saw several warnings being uttered not only by the
> At-Large participants but also by independent participants as well as
> ccTLD representatives and others, yet these gained no traction for
> various reasons which I would not attribute to Groupthink - a good
> explanation of which can be found on:
> http://en.wikipedia.org/wiki/Groupthink
>
> I would like us to be able to go into this public comment period with a
> much more open mind and to take our blinders off. 48 hours was too short
> a time to come up with a final solution and input from our wider
> communities will no doubt open new perspectives that we will need to
> give some serious consideration to.
>
> Kindest regards,
>
> Olivier
>
> ps. I have shared scenarios of threats/mitigation with the At-Large
> working group on IANA issues & will forward them to the list before the
> deadline today.
>
>
>
>
>


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