Attendees: 

Members:  Mathieu Weill, Thomas Rickert, Leon Sanchez,  Alan Greenberg, Alice Munyua, Athina Fragkouli, Becky Burr, Bruce Tonkin, Cheryl Langdon-Orr, Eberhard Lisse, Fiona Asonga, Izumi Okuatani,  James Bladel, Jordan Carter, Julia Wolman, Olga Cavalli, Robin Gross, Roelof Meijer, Samantha Eisner, Sebastien Bachollet, Steve DelBianco, Suzanne Radell, Tijani Ben Jemaa

Participants:   Arun Sukumar, Avri Doria, Chris Disspain, David McAuley, Finn Peterson, Guru Acharya, Keith Drazek, Kavouss Arasteh, Lars Erik Forsberg, Malcolm Hutty, Mark Carvell, Markus Kummer, Martin Boyle, Matthew Shears, Maura Gambassi, Oanh Nguyen Thi, Oliver Muron, Paul Rosenzweig, Phil Buckingham, Rudi Daniel, Seun Ojedeji, Sivasubramanian Muthusamy, Wolf Ludwig, Wolfgang Kleinwachter

Staff:  Theresa Swinehart, Adam Peake, Alice Jansen, Grace Abuhamad, Josh Baulch, Nathalie Peregrine, Marika Konings, Glen de Saint Gery, Jim Trengrove, Bart Boswinkel, Berry Cobb 

Apologies:

**Please let Brenda know if your name has been left off the list (attendees or apologies).**


Transcript

Transcript CCWG ACCT #2 19 January.doc

Transcript CCWG ACCT #2 19 January.pdf

Recording

The Adobe Connect recording is available here:  https://icann.adobeconnect.com/p7ntwj5b349/

The audio recording is available here:  https://icann.box.com/shared/static/7s465djvs9do2ej612v1drti19zzup46.mp3

Notes & Action Items

11.00 - 13.00 Informal Pitch introductions of "visions" regarding outcome of our group

Several CCWG members have volunteered - 5 minutes max. to allow for comments and questions.

Steve DelBianco (GNSO):

  • Visualisation excercise, not a 'sales pitch'
  • Important to look ahead and not the past, but an example from recent past may assist in this particular effort, namely string similarity (new gTLD program) with regard to singular/plural which were deemed not confusingly singular according to experts. No standing and objection process for registrants according to new gTLD applicant guidebook. If we had a permanent CWG composed of community members, this could create a community reaction to a board decision and challenge such a decision. Also need to change who has standing under independent review panel to allow for registrants / consumers to file a review request. 
  • Mechanism for the community to hold ICANN the corporation accountable for their decisions

Comments/questions:

  • Would this fit into WS1 or 2? WS1 - if you wait until after the transition, where would the leverage be for the Board to accept these mechanisms?
  • See also ATRT1 recommendations that may align with these suggestions
  • Need to be careful of who would be members of such a group as ICANN community is fluid (e.g. new constituencies may be created over time)
  • How to deal with absence of decision being taken by the ICANN Board - would such a community group also be able to compel a Board decision? Community can not hold Board responsible for an action it has not taken, although not acting in response to community consensus or taking a different action could be a reason to react.
  • In relation to singular / plural - not in conflict with GNSO policy as interpreted. Could require GNSO to review or clarify its policy recommendations instead of challenging the Board decision? Interpretation is the same as implementation - can create the same issues. 
  • Setting up a CWG that has the power to overturn board decisions or require board decisions could turn into another Board which would bring similar issues with it. Would appointing SO/ACs also be able to recall the members they have appointed? How would this be different and add something to what is already there?
  • GAC also issued in relation to singular/plural.
  • Need to be cautious and not overload WS1. Need to be able to keep pressure up on WS2. 

Roelof Meijer (ccNSO):

  • Very unfortunate that IANA Stewardship Transition and Accountability tracks got separated as both are closely linked
  • See also drawing shared in the Adobe Connect room (see  https://community.icann.org/download/attachments/51414991/Roelof%20Meijer%20Pitch%20CCWG%20Acc.pdf?version=1&modificationDate=1421664560167&api=v2) - reflecting on the role of the USG. Serves as a 'stick'. Who should hold the 'stick' following transition. It should be transitioned to a structure that also oversees the rest of ICANN, e.g. supervisory Board. Such a supervisory board should be limited in its scope but with very strong powers such as independent review, redress, dismiss the Board (or part of it), take out IANA contract & policy processes ("nuclear" option).
  • Assures high level accountability - advisory board would consist of chairs of SO/ACs, IETF, IAB, ISOC, NRO, W3C who are all elected and as such are accountable to their respective groups and can be replaced when not fulfilling their roles. 
  • If SO/ACs are represented in the Advisory Board they do not need to be represented any more on the Board which could consist solely of nominating committee appointees.

Comments/questions:

  • Would policy decisions still remain with the 'normal' Board? - yes, correct. 
  • Would advisory board have any relationship to operational communities and their respective proposals? How would overlap with dealt with in relation to handling of IANA contract in case of nuclear option? Overlap could also suggest common ground, but would need to be factored in. 
  • How would independent appeals mechanism interact with the supervisory board? Supervisory board could request independent review, possibly as result of community input. How this would be done is something for the CCWG to work out. Would it also be possible for third parties to request independent review or would any request need to go via supervisory board? It does not automatically need to be an internal structure, for example, under Dutch law a structure could be part of the bylaws but still be external. 
  • Would votes on supervisory board be directed votes or not (directed by appointing organization)? It is intended to be a representative, but self-regulatory as it is probably not practical to consult for every single vote. 

Athina Fragkouli (ASO):

  • Numbers community has submitted its proposal to ICG which recommends that ICANN remains in place as the IANA operator. 
  • Need mechanisms that create trust, ICANN to respect community decisions
  • Need replacement for what is missing after INTA leaves, ensuring respect for the MSM

Comments/questions:

  • Any proposed model would need to be reviewed on its merits by the community

Jordan Carter (ccTLD)

  • Prime interest in ICANN not doing much and not "screwing up". Interest in fewest resources being spent at global level as ccTLDs prefer to spend those resources at the local level with their local community.
  • Improving ICANN accountability is essential.
  • What would success look like? Needs a membership structure as structure currently is open to capture - carry out budget review, board decisions, etc.; build trust in the organization, culture of services - avoid scope creep, too much income.  

Comments/questions:

  • Need to consider whether there are alternatives to membership structure that would have same effect
  • Need to understand possible limitations of such a model (legal advice need)
  • Who are the 'members' under this model? Would it reproduce SO/AC model? Simple structure, using current SO/AC model. SO/ACs exist by virtue of ICANN - would they need to be further established in order to serve in a membership structure? Originally not incorporated to avoid legal challenges (e.g. being sued). 
  • How would you deal with membership votes? E.g. certain SO/ACs outvoting another SO/AC who is most directly affected by the issue. Also, how to deal with issues that are of no relevance / interest to certain SO/ACs? Only certain issues that are of relevance to all SO/ACs should be dealt with by the membership. 
  • Focus is on responsible institution building
  • Who is the 'community'?

Paul Rosenzweig:

  • Critical question is not about a mechanism for review of technical decisions but rather an architecture of accountability that will make ICANN accountable for broader issues / decisions. 
  • Control/approval of the budget would be central to such an architecture
  • The existence of indepent judicial review/redress mechanism, outside of ICANN, is another critical element which would judge the quality of the ICANN Board as well as the Supervisory Board (or whatever mechanism is put in place). 
  • Single most important piece is narrowly scoping what ICANN is permitted to do by its Bylaws - limit it to the management of scarce resource. Referring to 'public interest' leaves this open to interpretation. 

Comments/questions: 

  • What does 'external' mean - is this referring to 'independent' instead of necessarily an entity that would be completely detached from ICANN? External review mechanisms, for example in new gTLD program, didn't perform to everyone's satisfaction. Internal/external is a trade-off - internal may result in more expertise, but may also result in group-think. 

Alan Greenberg (ALAC):

  • Many issues have already been raised by previous speakers
  • ALAC is of the view that stability of the DNS is the number 1 focus. Making as few changes as possible was viewed on most likely achieving this result.
  • Trust is key component of current conversations in relation to an internal or external to ICANN solution. How can you create trust? Need mechanisms in place to fix if things go really wrong? MSM needs to be put more firmly in place to be able to address such a situation. Several models have been suggested for which further details will need to be worked out, but MSM needs to be in control not a small group of delegates. 

Comments/questions:

  • None

Recap (Thomas Rickert)

  • Pitches align closely with high level statements
  • Main themes identified: need to strenghten view of the community; build trust; community decisions to be respected; redress/review important elements. However, still details that will need to be worked out - e.g. composition, structure.
  • Internal / external terms used inconsistently - external as in outside of ICANN or as in independent? Main jist is that a mechanism should be able to provide redress and overturn an ICANN board decision. External does not necessarily need to be outside of the ICANN eco-system. 
  • Representation may need to go further than just ICANN SO/ACs and include other I* organizations. Should be independent and representative - request legal advice on how such a body can be operationalised. 
  • Mandate should be determined by SO/AC decisions. Similarly, ability to reverse Board decisions could serve as a way to ensure that remit granted under the Bylaws is respected. 

Comments/discussion:

  • Legal disputes should not go to any community group / panel but should be handled by independent legal review mechanism. Otherwise this could create chilling affect on parties that sign contracts with ICANN as it would reduce legal certainty. 
  • Big difference between supervisory board and ICANN board - members on the ICANN Board do not represent the organizations that have (s)elected them, while on the supervisory board members are expected to represent the organizations that have (s)elected them. 
  • Independence is important, but still questions around whether this can be done internally or whether it needs to be externally. See also definition document to be discussed this afternoon. Should ombudsman model be considered, but with binding decisions?
  • Focus has been on Board decisions - should management layer of decisions also be included so issue can be addressed at at an earlier stage
  • Separation of powers is key
  • Need to go to the heart of the issues which may be addressed without having to create additional entities which may increase complexity. Objective should be to simplify. 
  • Any redress / review decisions should be binding - review how current decisions are dealt with?
  • Supervisory board may bring along similar accountability issues as the CCWG is currently trying to address. Would not have fudiciary duty to the corporation but be accountable to appointing organizations. 
  • How much can be achieved by fixing accountability mechanisms already in place?
  • SO/ACs are halfway in / halfway out - in because part of the Bylaws and ICANN structure, out because no direct control over what SO/ACs can or cannot do. 
  • Need to consider that any solutions need to be easy to explain, simple; need to bring significant change within ICANN (change perception of ICANN's accountability); accessiblity to a wider range of stakeholders; be efficient. Note, 'significant' may be open to interpretation. 
  • Limiting scope could be achieved by various mechanisms, for example contract or golden bylaw. 

Separate item - Update on how GAC is dealing with this issue

  • GAC members are accountable as government representatives and responsible for consolidating positions before sharing these and as such not always able to freely contribute. Complexity and timeline also provides challenges, but GAC members are following the conversations closely and welcome the openness of the process. Key is to come up with a good solution that is built on consensus which will take the time it needs to take and will require sufficient community consultation. 

Documents Presented

Pitch_Meijer_Jan19.pdf

Pitch_Meijer_Text_Jan19.pdf

Pitch_Carter_Jan19.pdf

Pitch_Rosenzweig_Jan19.pdf

Chat Transcript

Izumi Okutani (ASO): (1/19/2015 10:52) @Grace, I have a question about the list of 21 contengencies. I heard this will be shared on ICANN website publicly. Would it be a fair understanding that based on this list, we will then as k4  questions on the slide and depending on the answer, the list may be shrinked on the points agreed by CCWG?

  Izumi Okutani (ASO): (10:53) It may be clear to all onsite but didn't quite capture that so just want to be clear

  Izumi Okutani (ASO): (10:54) as long as this can be clarified on the chat with chair's confirmation it is not necessary to raise this as the question,--- unless it's a point better to reconfirm with alll

  Grace Abuhamad: (11:05) I will be moving the chat pod. . . please standby

  Grace Abuhamad: (11:05) Completed, thank you!

  Benny / Nordreg AB: (11:11) no sound ?

  Benny / Nordreg AB: (11:12) thanks

  Bruce Tonkin: (11:27) Steve - for the Board to overturn or repalce a panel becuase a group doesn't like the panel diecsion - surely needs a process for doing so.   ie the board just repalicng a panel withn we don't like the andaswer of the indepdent panel seems strange.   I think wwhat we really need in your case is have a clear appeals mechanisms for the dispute resolution processes in the new gTLD.

  Avri Doria: (11:27) agree, with Malcolm, this sounds like a shadow board. and would have all the same accountabilty problems of the current board.

  Bruce Tonkin: (11:28) I anm struggling to see how the board is not acocunable when it is fuollowign the communiyt process that came from teh GNSO policy process and through the developmetn of the guidebook.

  Fiona Asonga: (11:28) +1 Malcolm

  Robin Gross [GNSO-NCSG]: (11:28) I agree with Bruce that these policy decisions should be made through the policy development process (not board legislation).

  Bruce Tonkin: (11:28) It is dangersous for the Board to start creating additional rpcoesses without refernece to the GNSO.   ie eitehr the GNSO shoudl be developing a enhanced policy about string confsion, or the GNSO comes up with a appeals process as part fo the new gTLD process.   Then the Baord is held accounable for following this process.

  Wolf-Ulrich Knoben: (11:29) I agree to Malcolm. How is this "superboard" going to be held accountable?

  Bruce Tonkin: (11:29) ie the Board is currently accountable for following its bylaws and the polices from the GNSO.   It is more dangerous if we wnat to have groups after the fact - as to throw out the decision of an independent panel

  Thomas Rickert (co-chair, m, GNSO Council, eco Association): (11:30) All, we will have to limit questions to questions for clarification. We will have a discussion once all pitches have been made!  Thanks.

  Malcolm Hutty: (11:30) In my view, Steve's idea is curable if the role of this new body is limited and carefully defined, e.g. restricted to saying things such as "this was out of scope of ICANN's mission" or "the Board chose to amend a PDP-determined policy, and should not do so without a new PDP"

  Bruce Tonkin: (11:31) Users for example already have standing in the reconsideration process.   But the test is whether GNSO policies were followed.    Currently the Baord hears the recosnideraiton request - so an enhancement coul dbe that an indepdent panel does that review, but the standard is surely whether the process was followed - not whether a party doesn';t like the decision of a panel.

  Avri Doria: (11:31) sometimes i think the only thing we need from stream 1 is binding appeal.  and i do not understand why the Board is waiting to create this.  think of the confidence it would create.

  Keith Drazek (Participant and ICG Liaison): (11:32) @ Malcolm...I tend to agree. The role of any membership body would need to be very narrowly scoped and carefully defined. Only to be used in limited last-resort situations.

  Malcolm Hutty: (11:32) @Avri, but question will be, on what grounds shoujd appeals be allowed?

  Bruce Tonkin: (11:32) Grace - s there a way of making the chat screen occupy the full space of the Adobe connect.   It is hard to follow chat in its current form.

  Robin Gross [GNSO-NCSG]: (11:33) yes, the chat is too short to read

  Samantha Eisner: (11:33) @Avri, should the Board go off and create, or engage with the CCWG to help design?

  Grace Abuhamad: (11:34) @Bruce and @Robin -- we will look into it

  David McAuley (GNSO): (11:34) Thanks Grace - very hard to follow this way

  Bruce Tonkin: (11:35) Acvri = most of us are fine with some binding arbtiration mechasnims as long as they are suitably scoped.   e.g there is already binding abritration int eh gTLD registry agreements.   Bt the scope is the topics in the agreement.

  Grace Abuhamad: (11:36) All -- we will reset the room to the way it was. Will wait until a break.

  Grace Abuhamad: (11:36) To avoid crossing typing

  Bruce Tonkin: (11:36) e.g if ICANN makes a decisions that is found to violate the bylaws - I would be fine with that decision being overturned by some binding mechansims.  I am more cautious when the mechansis directs ICANN to do something else.

  Bruce Tonkin: (11:37) e.g if ICANn awarded a contract for say translation of meetigns - and in some way violated the bylaws.   Then that contract might be cancelled - ut I would be wary if the mechansims directed ICANn to give the contract to another party.

  Malcolm Hutty: (11:37) +1 on being wary of outside entities being able to direct ICANN to do something new

  James Bladel-GNSO: (11:38) So the second level Board becomes the "Policy Board." This was proposed in ATRT1.

  Jordan Carter (.nz, ccTLD member): (11:39) Which one is the governing body of ICANN?

  Bruce Tonkin: (11:40) It would be the supervisory Board presumably.

  Jordan Carter (.nz, ccTLD member): (11:41) I wouldn't have thought so from what Roelof has said

  Bruce Tonkin: (11:41) I thnk this type of company structure is common in Europe - so might be helpful to get some briefing on how these models work in Europe.

  Mathieu Weill, ccNSO, co-chair: (11:41) @Bruce: yes, especially in Germany

  Bruce Tonkin: (11:42) My understanding is that often in this structure what is called the ICANn Board - would often by made up with Execs from ICANn - e.g Fadi, Akram, Theresa etc - perhaps with some external directors.   The supervisory Board is often made up of the owners/shareholders of the company.

  Izumi Okutani (ASO): (11:43) OK

  Bruce Tonkin: (11:43) German AG’s have a “two-tiered board” structure, consisting of a supervisory board (Aufsichtsrat) and a management board (Vorstand). The supervisory board is generally controlled by shareholders, although employees may have seats, depending on the size of the company. The management board directly runs the company, but its members may be removed by the supervisory board, which also determines the management board’s compensation. Some German AGs have management boards which determine their own remuneration, but that situation is now relatively uncommon.

  Bruce Tonkin: (11:43) Taken from http://en.wikipedia.org/wiki/Aktiengesellschaft

  Keith Drazek (Participant and ICG Liaison): (11:44) I would like to take this opportunity to remind everyone that these discussions will need to be informed by the independent legal experts that we're going to discuss at 1700 today. Structural reform will need to be done in a way that is consistent with California non-profit corporate law, if we assume ICANN remains in its current jurisdiction. These are obviously the details, but we as a CCWG really need to understand what is allowable and therefore possible.

  Jordan Carter (.nz, ccTLD member): (11:45) Good point @Keith D

  Jordan Carter (.nz, ccTLD member): (11:46) and thanks @Bruce - this now makes sense

  Bruce Tonkin: (11:47) This form of chat is fairly unworkable.     It might be better to set up a second Adobe connect room just for running chat.   THis chat can then use up all the screen real-estate.   users can then swtich windows on their  devices as they need to.  

  Keith Drazek (Participant and ICG Liaison): (11:48) We ought to be able  to swap the discussion notes and the chat.

  Grace Abuhamad: (11:49) ok we will switch them no

  Grace Abuhamad: (11:49) now

  Keith Drazek (Participant and ICG Liaison): (11:50) that's better, thanks Grace

  David McAuley (GNSO): (11:51) Thnaks Grace -

  Bruce Tonkin: (11:51) From Roelfofs answer - basicallyit seems to split the current Board into two halfs.   The key diference is that the Baord directors from the SO/ACs are basically chairs of the orgnaizxations, compared to having the organszations elect separate people to the Board.

  Mark Carvell  GAC - UK Govt: (11:51) Spervisory Bord is interesting model; precise parameters for referring "noise" up to an independent review need to be clarified. Also would it deal with financial/budgetary issues?  Note governments with their safeguarding public interest role have only one voice onthe SB among many.

  Bruce Tonkin: (11:51) The supervisory Board though would still I think underlaw have the same legal accounability as the current board.   ie they have to act in the best interests of the orgnaizaiton - rather than the groups that individually elect them.

  Bruce Tonkin: (11:52) Thanks Grac e- this is indeed better.

  Malcolm Hutty: (11:53) +1

  Grace Abuhamad: (11:53) Thank @Josh who was able to make the move swiftly

  Grace Abuhamad: (11:53) :)

  Robin Gross [GNSO-NCSG]: (11:54) Thanks, Grace.

  Matthew Shears: (11:59) Well said Jordan!

  Keith Drazek (Participant and ICG Liaison): (11:59) +1 Jordan, excellent comments. Fully support everything you said.

  David McAuley (GNSO): (11:59) @Jordan +1

  Cheryl Langdon-Orr (ALAC-AP Region): (12:04) @bruce / @roelof,  one week to the Supervisory Boards constituent parts it could but the seats are held by the Chairs OR its Deligate' perhaps... allows greater self determination to the AC's and SO's

  Keith Drazek (Participant and ICG Liaison): (12:07) I think the suggested supervisory board is really an escalation mechanism for limited and narrow instances, not for normal policy decisions, etc.

  Keith Drazek (Participant and ICG Liaison): (12:09) The key to any member/supervisory board is to ensure a very narrowly focused set of responsibilities to be used in rare instances. A new backstop if you will...

  Izumi Okutani (ASO): (12:10) Thanks Keith for this clarification I undeststand the concept better

  Matthew Shears: (12:11) if a supervisory board is necessary/desirable it should as Keith says have a very specific and narrow mandate

  Bruce Tonkin 2: (12:13) Agreed Keith - I think some form of membershpi body that has a narrow remit is possible.

  Wolf-Ulrich Knoben: (12:13) Budget control is operational.Balance sheet control might be part of supervision.

  Paul Rosenzweig: (12:13) Wolf -- I accept that ...

  Keith Drazek (Participant and ICG Liaison): (12:14) Great presentation Paul....especially at 5am! Agree with your comments about the independent judiciary function as the ultimate escalation point.

  Paul Rosenzweig: (12:14) But approval of budget is typically the singe most significant method of controlling an executive.  That's why most parliaments control the budget not most executives

  Bruce Tonkin 2: (12:15) One of the challenges recently actually on the balance sheet side - is working out what sorrt of reserve fund the orgnaizaiton should have.   Over the years the gTLDs registrar and registry fees have been used to build a reserve fund.   The magnitude of that fund (seaprate from any auction proceeds) is certainly something the community should have input to.

  Bruce Tonkin 2: (12:17) Regarding auciton fees - there has never been an objective to raise auction funds.   The ideal orocess woul dbe that there is no need for an ICANn auction.   The auctions are actually now only happening in a small minotory of cases.     ie currently less than 1% of applicatins have needed to use the last resort mechansim.   It is up to teh community how these funds shoudl be used.

  Sivasubramanian M: (12:23) The supervisory Board / Accountabiliy Body / External Review or Judiciary Body could be consittued in part with people with advanced judicial expertise and in part by non-judicial experts. It is not always that the review questions brought up are of legal nature, it could also be of a non-legal nature.  What is legal are questions of whether rules / processes are followed.  Accountability is a process beyond processes.  The Multistakeholder body should be in a position to bring up a RIV or a suit against the whole Board or the entire organization, without rasing the question of disbanding ICANN or taking away Names/Numbers from ICANN.

  Sivasubramanian M: (12:24) non-judicial Community Leaders of known commitment and exceptional character

  Samantha Eisner: (12:24) @Siva, what is a RIV?

  Keith Drazek (Participant and ICG Liaison): (12:24) Thanks to all  the presenters!

  Sivasubramanian M: (12:25) It is actaully a "law suit" as even a law suit against a whole nation or all the people.  

  Sivasubramanian M: (12:26) In this case, it could be a legal or non-legal "suit" against the ICANN Board or the entire ICANN Community

  Keith Drazek (Participant and ICG Liaison): (12:27) The key term is "independent" and the question then is whether the independent redress body is internal or external.

  Cheryl Langdon-Orr (ALAC-AP Region): (12:28) agree @kieth

  Grace Abuhamad: (12:28) You have scroll control

  Sivasubramanian M: (12:29) Such a situation occurs when ICANN fails to fulfill the inherent commitments, has acted in the manner in violation of fundamental trust, fundamental "terms" of the implied contract with the Community / Internet

  Avri Doria (participant & atrt laison): (12:31) there is no agreement on the real scope of ICANN's mandate.  that is not something we can rely on.

  Robin Gross [GNSO-NCSG]: (12:33) Agree with Avri on this point.  What ICANN's mandate should be is up for interpretations and different opinions.

  Sivasubramanian M: (12:34) @Alan  +1

  Bruce Tonkin 2: (12:35) Alan in simple terms having a group made up fo reprsentaivitve that vote accordint to the needs to their stakehodler group is basically how the GNSO Council operates.

  Robin Gross [GNSO-NCSG]: (12:35) Independence is a relative concept.

  Sivasubramanian M: (12:36) And with years, the commitment grows, (some off the) the same people in the Supervisory Board would be  wiser and more nuetrral

  Bruce Tonkin 2: (12:36) The Board though has operated on the philioshpy of acting in the global public interest rather than any one stakehodler group.   I think it is worth cementing that model a bit more clearly in the bylaws.   It is in the artiles of asspociation and how we brief and train board directors - but that fact doesn';t seem to be widely understand.

  Bruce Tonkin 2: (12:36) I think supervisorty Board and having the abiolity for some things to be subject to "member" approval are slightly different concepts.

  Bruce Tonkin 2: (12:37) I think a supervisory Board as described by Roelof woul dhave the same legal requirements as the current Board.    However having some matters subject to "member" approval I think is a different concept.

  Cheryl Langdon-Orr (ALAC-AP Region): (12:38) agree with you +++@sam

  Robin Gross [GNSO-NCSG]: (12:38) I think the supervisory board would have the same legal obligation to protect the corporation that the existing board does.  

  Alan Greenberg (ALAC): (12:38) @Bruce, I agree

  Cheryl Langdon-Orr (ALAC-AP Region): (12:39) I see @Bruce's points but would need specific and juristiction legal advice before I agree / decide

  Bruce Tonkin 2: (12:39) Currently in the current Baor d- the pupose of the nomaintigng committee appointed memebrs was partly to create som emore indidependet from the SO/AC appointees.   ie you balance a board with mpeople that are directly associated witht eh community and are experts in the areas of IP address and domainnaems, then you add people selected by the nominating committee that bring in braoder corporate experience with a backgroun of operaitng in then global public interest.

  Bruce Tonkin 2: (12:40) Agreed Robin.

  Jordan Carter (.nz, ccTLD member): (12:40) It depends on how it is constituted and what its role is, doesn'tit?

  Jordan Carter (.nz, ccTLD member): (12:41) If that isn't the case, then it needs to be external. But I'd be a little surprised.

  Sivasubramanian M: (12:41) @ Sebastien    The idea of such an Accountability Oversight  / Judicial Body  is NOT to complicate, but to fill up a gap

  Bruce Tonkin 2: (12:41) A board has certain legal reuqirements that probably don't differ that much between countries.   Having member votes is different.

  Keith Drazek (Participant and ICG Liaison): (12:41) @ Robin: I think you're correct. I'm not a lawyer but I believe the membership structure is more likely to be acceptable under CA law than a supervisory board, unless the supervisory board has fiduciary responsibilities to the corporation.

  Sivasubramanian M: (12:42) It is to create a balance

  Keith Drazek (Participant and ICG Liaison): (12:42) @Bruce: correct, a membership structure is different

  Sivasubramanian M: (12:42) And to ensure that ICANN governance is fair

  Bruce Tonkin 2: (12:42) Having a judiary function is also different I think from ta Board.   THe judiciary function is not making decisoins about the direction of ICANn etc - it is purely there to see that we are followig our rules.

  Cheryl Langdon-Orr (ALAC-AP Region): (12:42) I suspect so @jordan, but also an entity /supervisory board as in Roelof's sketch could be 'In-House' yet at arms length

  Cheryl Langdon-Orr (ALAC-AP Region): (12:43) could it not?

  Robin Gross [GNSO-NCSG]: (12:43) yes, Keith.  California corporations law does allow for membership corporations.  But we'd have to totally change the Articles of Incorporation.  Possible, but not trivial.

  Mark Carvell  GAC - UK Govt: (12:43) If i were to present a vision, I would major on a primary aim for new era ICANN as being rigorous (with enforceable safeguards and redress) obligation of ICANN to serve the global public interest which needs to reach out to stakeholders outside the current ICANN community - that advances diversity (e.g linguistic, cultural, openness) and inclusiveness: the interests of all communities in developed, developing economies, small island states, LDCs. There needs to be indpendent corrective supervisory mechanisms to keep ICANN on track with prioritising fulfilment of that aim and not to deviate to serve for example specific narrow commercial interests., a vulnerability that has has been demonstrated in current new gTLDs round.We may well need an inclusive superstructure of supervision that has been described this morning to achieve this.

  Bruce Tonkin 2: (12:43) Steve noted that a communiyt gourp of some form would have standing to raise a dispute - ut I presume that you still have a judidiary function that determines whether the ICNAN has breachesd its rules in some form.

  Steve DelBianco: (12:43) @Robin -- see footnote on the Work Area 2 doc, where we cite ICANN Articles of Incorporation -- they anticipated Members

  Bruce Tonkin 2: (12:44) That is why I was asing Steve about what standard the judiciary body is using to make a decison..   Te judiciary body shouldn';t be making poolicy - eg creating a policy about singular and plural names.   That is the orle of the GNSO.   THe quesiton would jsut be whther the panel has made a reasomnable decision base don the rules procuded by the GNSO about confusingly similar.

  Sivasubramanian M: (12:45) @ Bruce    The judiciary Body would be ineffective if obsesses only by rules and processes

  Bruce Tonkin 2: (12:45) Mark 0 I agree we need to consciously focus on getting more participants and stakehodlers.

  Bruce Tonkin 2: (12:46) In any membership model we need to be careful to ensure that new members can be added overtime, and that hte current members at that time can't unreasonable limit the creation of new member groups.

  Sivasubramanian M: (12:46) The Supervisory Strucrure shall have no strings attached.  Even the process of compnsation need to be independant

  Keith Drazek (Participant and ICG Liaison): (12:48) @Mark and Bruce: While it's important to attract new participants, I believe it's more important that we (ICANN and ICANN community) work to encourage greater CONTRIBUTION from existing participants. We've increased the number of stakeholders attending meetings, but are largely holding constant on the number of actual contributors.

  Bruce Tonkin 2: (12:49) Good point Avri.   I think we can certainly enhance our existing mechansims.   These enhancements cna include making them more independent, widening their scope, and allowing some form of binding arbitration.

  Bruce Tonkin 2: (12:49) The more we can separeate the Baord and a judiciary function - the better in my view.  

  Robin Gross [GNSO-NCSG]: (12:49) +1 Bruce

  Cheryl Langdon-Orr (ALAC-AP Region): (12:50) agree @bruce

  Keith Drazek (Participant and ICG Liaison): (12:50) +1 Bruce

  Wolfgang2: (12:50) @ Keith, we need both deepening and broadening.

  Keith Drazek (Participant and ICG Liaison): (12:50) Agreed

  Robin Gross [GNSO-NCSG]: (12:51) The more I think about it, I think we should focus more on fixing some of the problems with the existing mechanisms before we decide we need a total re-organization

  Cheryl Langdon-Orr (ALAC-AP Region): (12:51) I also support the last of @avri's cooments ...specifically the need to "fix and or improve accountability mechanisms we already have" is essential

  Leon Sanchez (Co-Chair-ALAC): (12:52) I agree @Robin

  Alan Greenberg (ALAC): (12:52) @robin +100

  Keith Drazek (Participant and ICG Liaison): (12:52) WS1 needs to enable WS2

  Keith Drazek (Participant and ICG Liaison): (12:52) or perhaps better said, WS1 needs to GUARANTEE WS2

  Matthew Shears: (12:52) + 1 Avri and Bruce - we should be looking at both new mechanisms and at how we can strengthen existing mechanisms and then see what combination of enhancements is most suited

  Jordan Carter (.nz, ccTLD member): (12:53) WS1 needs to establish a settlement where anything in WS2 can be implemented

  Avri Doria (participant & atrt laison): (12:54) i tink we achiee more by fixing what we have.  anthing new we introduce, and perhas we do need some new stuff, will have to go through its own years of workig out the bugs.  On the existing mechansims we have a fair amount of expereince and even some clues on what needs to be fixed.

  Cheryl Langdon-Orr (ALAC-AP Region): (12:54) agree with you as well on the need for a "simple, effective, efficient, yet significant'" change needs to be seen...

  Jordan Carter (.nz, ccTLD member): (12:54) Yep. "Fixing what we've got now" isn't going to cut it.

  David McAuley (GNSO): (12:54) @Jordan +1 except to say “where anything in WS2 can be implemented in a timely manner.”

  David McAuley (GNSO): (12:55) and "can" be implemented means "will" be implemented

  Wolfgang2: (12:55) remember the five "S": Security, Stability, Sustainabiliy, Subsidarity and simplicity

  Avri Doria (participant & atrt laison): (12:55) yes, we need the accessble/binding appeal/arbitration.  that is the piece of the puzzle that is missing.

  Jordan Carter (.nz, ccTLD member): (12:55) [in my view, what we have now isn't fundamentally accountable - it's only acceptable because NTIA can move the contract.]

  Cheryl Langdon-Orr (ALAC-AP Region): (12:56) yes @jordan, but we still do need to commit to and or fix ASAP, what we already have as mechanisms

  Jordan Carter (.nz, ccTLD member): (12:56) absolutely agree @CLO

  Jordan Carter (.nz, ccTLD member): (12:56) it's not an either-or :)

  Phil Buckingham: (12:56) Robin +1  use/ identify  the existing mechanisms  and then  scale up

  Matthew Shears: (12:56) agree with both Jordan and Cheryl

  Cheryl Langdon-Orr (ALAC-AP Region): (12:56) yes @avri that is not to be forgotten

  Avri Doria (participant & atrt laison): (12:58) Jordan, and perhas the contract will remian a moveable accountabilty factor.

  Matthew Shears: (12:59) it should remain moveable as a long term safeguard measure

  Jordan Carter (.nz, ccTLD member): (13:00) @Avri - yah

  Avri Doria (participant & atrt laison): (13:00) the question to ask, can ICANN be held to account without a sword of damocles

  Avri Doria (participant & atrt laison): (13:01) and if it can be, how complex a mechansims is needed.

  Avri Doria (participant & atrt laison): (13:03) but to be fair, obversely, one casn ask has the current sword of damocles, the NTIA contrct, been successful at enforcing ICANN accountabilty?

  Robin Gross [GNSO-NCSG]: (13:03) If the IRP were binding (assuming that is legally possible), we have a big chunk of the accountability sorted.

  Robin Gross [GNSO-NCSG]: (13:04) well fix a few of the things about the IRP, actuallly

  Robin Gross [GNSO-NCSG]: (13:04) not just binding

  Avri Doria (participant & atrt laison): (13:04) Robin, as long as it can be accessed by the less rich appelants.

  Robin Gross [GNSO-NCSG]: (13:04) like costs, and standard of review, time constraints

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