Members: Alan Greenberg, Athina Fragkouli, Becky Burr, Bruce Tonkin, Cheryl Langdon-Orr, Izumi Okutani, Jordan Carter, Jorge Villa, Julia Wolman, Julie Hammer, Leon Sanchez, Mathieu Weill, Par Brumark, Robin Gross, Roelof Meijer, Samantha Eisner, Steve DelBianco, Sebastien Bachollet, Thomas Rickert, Tijani Ben Jemaa (20)
Participants: Alan MacGillivray, Anne Aikman-Scalese, Arun Sukumar, Avri Doria, Barrack Otieno, Carlos Raul Gutierrez, Chris LaHatte, Christopher Wilkinson, David McAuley, Edward Morris, Finn Petersen, Greg Shatan, Jonathan Zuck, Jorge Cancio, Jyoti Panday, Kavouss Arasteh, Keith Drazek, Markus Kummer, Mary Uduma, Matthew Shears, Niels ten Oever, Padmini Baruah, Phil Buckingham, Rishabh Dara, Sabine Meyer, Seun Ojediji (25)
Legal Counsel: Holly Gregory, Michael Clark, Nancy McGlamery, Rosemary Fei (4)
Guests: Asha Hemrajani, Fadi Chehadi, John Poole, Jonathan Robinson, Konstantinos Komaitis, Maciej Tomaszewski (6)
Staff: Alice Jansen, Bernie Turcotte, Berry Cobb, Brenda Brewer, Grace Abuhamad, Theresa Swinehart
Apologies: Alice Munyua
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p212rahhqht/
The audio recording is available here: http://audio.icann.org/gnso/gnso-ccwg-acct-06oct15-en.mp3
1. Welcome, Roll Call, SOI
2. Status updates
3. Transparency on Board briefing
4. Legal requests for certification
5. Summary of recent email list discussions
6. A.O.B
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.
Please be kindly reminded to fill in your statement of interest.
Status updates
Oct 12 is the deadline for WP papers. They will be added to the reading list for Dublin. We have increased Board participation in WP calls.
Kudos to volunteers. We look forward to prepared summaries for Dublin.
WP 1
We have been working through analysis of public comments. Next call will deal with public comments received on community forum,
sole member model, Bylaws and removal of individual directors. We will also need to conduct a second reading of public comments.
We will have set of issues to discuss by Dublin meeting. We may need an additional call.
WP2
We have worked on issues related to mission, core values, IRP. We will have write-ups for discussion in Dublin. We will need to
schedule an additional call.
WP3
We will be holding a call later today. We will use Jonathan Zuck's model to assess Work Stream 2 items.
WP4
We will be holding a call later today/tomorrow. We have assigned work to volunteers who are following Jonathan Zuck model to
assess comments received on human rights.
ST-WP
A call will be held tomorrow to compile and analyze comments received. Some comments recommend that we dive deeper. Comments
also focus on stress tests 21, 29, 30.
ACTION ITEM - Steve del Bianco to reach out to Thomas Schneider to enquire about status of language.
Feedback;
- Too many calls and low attendance on calls. To what extent are WPs taking into account Board comments and outcome of LA meeting?
--> Work parties are not decision-making bodies. It is important to take into account Board comments as much as other comments. They
need to be properly assessed
and taken into account.
Transparency on Board briefing
This is a follow-up on conversation held on public list. Cochairs wrote to Steve Crocker after LA meeting on Sept 28. It was suggested
that Board meetings on
accountability as well as communications would benefit from being public. Steve agreed to share briefing materials, have Cochairs brief Board on new developments and would look
into adjusting schedule to enable further changes. Are additional steps required or have we adequately conveyed this?
Feedback:
- Was this based on specific advice from counsel and if so, could that be shared with group.
- There was a Board informational call today. If there is any specific advice, it will be shared. Could inform you of upcoming informational
calls and topics discussed.
ACTION ITEM - Bruce Tonkin - in Board liaison capacity - to get back to CCWG on advanced notice and to clarify process.
Legal Requests
We would like to certify questions sent on list with respect to fiduciary duties, SO/AC rights to select directors. They will be sent in a
separate email. Legal counsel will also be requested to kick off drafting of AoC reviews Bylaws. A document was received from ICANN
legal but it was sent back as we need a redline. We will be beginning work with our legal advisors.
Feedback:
- Clear description needed. Under what conditions is a judgement available should Board decide to participate in IRP - could you clarify
if certified? We have concerns that we are limited to participate in these discussions. When silent on issue, it does not mean we are in
agreement. ICANN legal is not on a similar restriction. We are waiting for questions to be certified to weigh in. On bylaws drafting, we
have received draft. Language CCWG has been working on has been dropped into bylaws and it is not clear that there have been additional changes.
--> IRP related question will be included in certified questions. Weighing in on list on previously certified questions is OK. It would be useful for
you to flag these moving forward so that we can keep track of costs.
- Emphasis on certification is too constraining. Certification is important but if there is response that can be made in real time, we would
benefit from having counsel being able to speak.
--> We will require lawyers to flag any uncertified questions.
- Should we consider certifying question about whether ICANN as it stands now is already a designator model. It could be useful to task
our lawyers to further analyze whether current model is a designator model.
--> This clarification would be welcome.
Conclusion: counsel can respond to follow-up questions to already-certified questions, when no additional research or significant
drafting is required
ACTION ITEM - Legal counsel to identify memos that address GAC related issues/questions
ACTION ITEM – Cochairs to send an outline of certified questions to lawyers.
Summary of recent email list discussions
Objective is to share perspectives on discussions.
Key issue for several stakeholders is whether SO/ACs are sufficiently accountable to global internet community to be provided with community powers and ultimate enforceability
of these powers. We still don't have definition of what kind of changes would be needed to SO/AC structure to make it acceptable. There is
also a lot of discussion regarding voting. We are seeing a lot of traction on investigating model based on consensus. We are seeing
acknowledgement that it will be difficult to convince that membership of model needed. Designator model is getting traction. Steve Crocker's
email made it clear that it would not be acceptable. Suggestion was made on list: membership is means to achieve enforceability but if we
can get to enforceability without membership, we can get our job done. Board supports community powers. Plan B would be to activate membership gene.
Feedback:
- Was there significant public comment on the Second draft report to the effect that SOs and ACs are not accountable enough to support the
sole member model?
--> Due diligence has not been conducted yet. It is definitely not unrooted from concerns raised in public comment.
- Concerns that model needs to be tested first.
We need stability.
- Board broadly support focus on finishing details for enforceable powers. We should continue to work on refining powers, IRP process to make
sure community has a way to hold Board to account. If we focus on enforcement it can be a constructive discussion.
- Can we come up with enforceable powers or not? Our principle goal is empowerment of community.
- Plan is a good start and should be taken into consideration. Voting is a concern - in favor of consensus.
- We have to look at a number of realities. CCWG proposal must be approved by COs and Board will need to implement new Bylaws. If Board believes it is not interest of ICANN, it will not get done. We
need dialogue between Board, lawyers, CCWG.
--> We are working on revised timeline that will inform discussion.
- None of us know what will be approved by SGs. We don't have consensus in community on model yet. It is what we should be focusing on
first. If Board advises on what it wants to see - can get to a constructive discussion
- Constraint of what Board will approve is important.
- We have a time constraint. Suggestion that Jonathan and/or Steve write clear proposal and seek whether this can be acceptable or not. It
would enable us to go to Dublin with something we can elaborate on.
- We should first try to stay within Boad redlines and try to deliver. If we find it impossible, we should go outside these lines. If we show that
we cannot deliver powers and enforceability we agree on - within the existing structure. We should first see whether we can deliver.
- We need to be careful in how we define redlines. We have been tasked to develop a consensus based proposal developed through bottom
up. Is it community based if Board is limiting options? We need to be open in what we would like to see and addressing concerns,
- We need to decide which direction we want to go into.
- It is up to lawyers to articulate degree of enforceability with or without designator. A consensus of AC/SOs could trigger it at any time. Would
welcome input around governance review. Intention is to activate gene of membership.
--> if a consensus of SO/AC triggers governance review, what if the Board disagrees? How would that be enforceable?
--> It would take 2/3 of Board majority to reject it. If we still want to convert to a membership it would require 3/4 of Board to reject. This means
we would recall Board.
- We should not make enforceability a complex question. It ought to be factually driveable and we could build proposal around these facts.
- We have to find way forward. We have to see to what extent we need to improve that. Let's work on Steve's approach.
- Convergence would be two parallel tracks: 1) Conversation from Jonathan and Steve; 2) Work of WPs with Board participation. We should be
further refining requirements for community powers taking into account comments. Discussion on diversity is key to exercise. It might help for
future conversations on model. When considering decision-making process for exercising community powers, if we strive for consensus to address any concerns of capture, we will be able to see what
legal vehicle is needed to implement this.
Conclusion: follow up on this conversation on list. We will try to take stock of exchanges of emails. We will need to assess in which areas
various models would be enforceable as well as how a second phase become acceptable - what would be the conditions that would trigger
second review i.e. what would imply conditions that are met for second review. Board is asking for enforceability, not trust.
- There is no agreement on enforceability. We want a certain set of requirements to be met – ask law firms to work on that and to get back to
you with text. Happy to work on requirements And to organize a call with lawyers to agree on framework.
---> Instructions to lawyers would not be as clear as private. We are in multistakeholder process. There is still refinement and gaps to bridge in
that regard.
--> Disagreement between lawyers on enforceability on MEM – what does it mean for trust in enforceability? It has not been clearly conveyed to
Board what concern is.
ACTION ITEM – Identify relevant part of memo that addresses specifically MEM concern and share with Board so we are clear about legal aspects.
- A shared comparison of IRP compared to second draft proposal may help shed light. Binding arbitration is binding. What do you need to have to
get to binding. Under some legal mechanisms some powers are not available in same way. We need to rely on direct enforcement powers. Power
to recall Board and remove directors can be powerful. You need to make sure u do it in legally enforceable way. We designed legal models around
how we best achieve legally enforceable powers. Legal mechanisms and enforceability are all intertwined.
--> If we choose ability to remove directors, and then there is a dispute process, does the mechanism as proposed by MEM give ability to remove
directors enforceable?
---> There is risk in terms of enforceability. How is that right expressed? Is it a designator right or is it expressed in a different way. Who has
standing to enforce right. Challenges and uncertainties are greater.
----> Third parties can be given rights but it remains to be seen how stable it is to enforce these rights. If you don't know legal person enforcing
rights, it might be in theory enforceable but there might be a lot of barriers. They can't enforce other people's rights. Underlying issue of MEM
predates. Did it come into existence. It has claim. Ongoing unincorporated association are a legal person at any relevant time. It is one last issue
that could be raised. Are they going to be willing to put themselves in line and go through litigation to make sure this right is enforced. Our
assessment is that MEM is limited.
- Board proposed that Chairs be enforcers. We look at that and discouraged it Chairs may not want to take legal responsibility; until we see
it model is under question.
Conclusion – Core issue is not about legal/model – it is about conclusion of mutual accountability and sharing of stewardship. Balance has to
be moved but Board does not see what we were seeing. We need a way to get enforceable powers and not forget underlying expectation that
enhancement include significant work on core issue.
ACTION ITEM – Steve del Bianco Jonathan Zuck and Kavouss Arasteh to hold short briefing with legal counsel on plan B proposal so that it
can be fleshed out and lead to a more detailed discussion.
AOB
- There are two upcoming coordination meetings: 1) transition facilitation program call: monthly call scheduled in July with various groups
including NTIA; 2) call with SO/AC leaders including update to SO/AC Chairs for them to organize planning for Dublin sessions.
- Any question from lawyers should come to Cochairs and we should have list of questions that have been answered or not so there is diligent tracking.
ACTION ITEM - Steve del Bianco to reach out to Thomas Schneider to enquire about status of language.
ACTION ITEM - Bruce Tonkin - in Board liaison capacity - to get back to CCWG on advanced notice and to clarify process.
ACTION ITEM - Legal counsel to identify memos that address GAC related issues/questions
ACTION ITEM – Cochairs to send an outline of certified questions to lawyers.
ACTION ITEM – Identify relevant part of memo that addresses specifically MEM concern and share with Board so we are clear about
legal aspects.
ACTION ITEM – Steve del Bianco Jonathan Zuck and Kavouss Arasteh to hold short briefing with legal counsel on plan B proposal
so that it can be fleshed out and lead to a more detailed discussion.
kavouss arasteh: (10/6/2015 00:51) Dear Alice,
Brenda Brewer: (00:52) Welcome to the CCWG Accountability Meeting #58 on 6 October Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards
Jordan Carter (.nz): (00:55) it's a new adventure every day with the CCWG!
Alice Jansen: (00:55) Please mute your lines.
Holly Gregory (Sidley): (00:58) Greetings to all.
Mathieu Weill, ccNSO, co-chair: (00:58) Welcome everyone !
Anne Aikman-Scalese - IPC: (00:58) Hi Holly and everyone.
Niels ten Oever: (00:58) Hi all
jorge cancio (GAC Switzerland): (00:59) hi all
Padmini: (00:59) Hi everyone, has anyone started speaking? I'm getting somewhat cracked reception
Jordan Carter (.nz): (00:59) Nobody is speaking.
Sabine Meyer (GAC - Germany): (00:59) Hello everyone!
Sabine Meyer (GAC - Germany): (00:59) And I heard that weird noise, too, Padmini.
Chris LaHatte: (01:00) @jordan, isn't that a good start
Greg Shatan (GNSO/CSG/IPC): (01:00) Hello, all.
Anne Aikman-Scalese - IPC: (01:01) @ Greg - shouldn't you be asleep?
Jordan Carter (.nz): (01:01) Chris: it is a step up from "Nobody is listening."
Greg Shatan (GNSO/CSG/IPC): (01:01) I should be, especially considering that I had a 5-7 am WP1 call at the beginning of my day....
Carlos Raul: (01:01) hello
Jordan Carter (.nz): (01:02) You're a champ, Greg.
Roelof Meijer (SIDN, ccNSO): (01:02) Hello all!
Greg Shatan (GNSO/CSG/IPC): (01:02) I thought about skipping the call, but I made the mistake of looking at my email one last time....
Markus Kummer: (01:02) Hello All
Jordan Carter (.nz): (01:02) hello Roelof! welcome aboard.
Athina Fragkouli (ASO): (01:02) hello all :)
Julia Wolman, GAC Denmark: (01:03) Hello
kavouss arasteh: (01:03) leon
kavouss arasteh: (01:03) i am disconnected
Alan Greenberg: (01:03) @Greg, Yup
Jordan Carter (.nz): (01:08) Greg: there was an email?
Padmini: (01:09) Lost volume
Anne Aikman-Scalese - IPC: (01:09) lost you leon
Jordan Carter (.nz): (01:09) Leon-less-ness
Brenda Brewer: (01:10) we will call Leon back
Leon Sanchez (Co-chair ALAC): (01:10) sorry
Brenda Brewer: (01:10) please stand by.
Leon Sanchez (Co-chair ALAC): (01:10) call dropped
Becky Burr: (01:12) also in WP2
Cheryl Langdon-Orr: (01:12) thanks for that Steve
Jordan Carter (.nz): (01:12) I should be clear that all I'm doing in WP1 is helping the process - thank you so much to the volunteers doing the substantive work
Keith Drazek: (01:13) You're doing more than just helping, Jordan.
Jordan Carter (.nz): (01:13) Keith, Steve, Robin, Jonathan, and so many others. It's good work :-)
Jordan Carter (.nz): (01:14) I have a good idea - let's just not have any more meetings until Dublin.
Greg Shatan (GNSO/CSG/IPC): (01:15) If anyone has a proposal for how to do this with fewer meetings in the same amount of time, I"m all ears.
Avri Doria: (01:15) does 'taking into account the Board comments' mean do as we are told by the Board?
Jordan Carter (.nz): (01:15) Yes, I am having difficulty with the time commitment.
Bruce Tonkin: (01:15) Good afternoon.
Keith Drazek: (01:16) @Kavouss: The CCWG is continuing to analyze the public comments, including the Board's input, as was required by our processes. We are continuing our work as planned. The Board has provided important input, but we must consider the input of all commenters. We are in the process of doing so.
Anne Aikman-Scalese - IPC: (01:16) agree with Keith's summary
Matthew Shears: (01:16) +1 Keith
Avri Doria: (01:16) perhap s it is becasue i got up at 2am to see the demands, but i am so disheartened by this process.
Bruce Tonkin: (01:16) I agree with Keith also.
Bruce Tonkin: (01:17) What demands are these Avri?
Greg Shatan (GNSO/CSG/IPC): (01:17) I don't think the WPs have to be large groups. They are intended to feed into the larger group.
Jordan Carter (.nz): (01:17) Bruce: the second ultimatum you and your colleagues delivered to us. By email, this afternoon.
Keith Drazek: (01:18) We are all suffering from the work load, but I'm also confident there's a strong commitment to keep plugging away at this. The next 2 weeks will be very intense. It is what it is.
David McAuley (RySG): (01:18) I agree with Keith as well, and FWIW I thought the WP2 call last night focused on a good number of comments, including the board's
Greg Shatan (GNSO/CSG/IPC): (01:18) Bruce, I think Avri meant to say "gentle suggestions". From Steve Crocker on behalf of the Board.
Jordan Carter (.nz): (01:18) The substantive work that is being done in the WPs is the work that needs to be being done. And it's good stuff.
Greg Shatan (GNSO/CSG/IPC): (01:18) Forgot to insert irony marks.
Mathieu Weill, ccNSO, co-chair: (01:18) https://community.icann.org/display/acctcrosscomm/CCWG+Letter+to+Chairman+of+ICANN+Board
Avri Doria: (01:18) Steve's demands that we stop working on thrying to fix the SM mdel based on comments and do as he commands.
Mathieu Weill, ccNSO, co-chair: (01:20) https://community.icann.org/display/acctcrosscomm/CCWG+Letter+to+Chairman+of+ICANN+Board
Anne Aikman-Scalese - IPC: (01:21) Very important that this CCWG "stay the course" and follow the multistakeholder process.
Jordan Carter (.nz): (01:21) Steve's reply just spotted: https://community.icann.org/pages/viewpage.action?pageId=56139330
Fadi Chehadé: (01:22) The Board has published all of its advice points related to the CCWG-Accountabilty.
Arun Sukumar: (01:24) hi all, apologies for being late
Greg Shatan (GNSO/CSG/IPC): (01:25) Fadi, thanks. Then I expect Steve or someone else from the Board will be able to point to the advice which led to the conclusions regarding the Designator in Steve's email.
Jordan Carter (.nz): (01:25) Arun: we will try to forgive you :-)
Anne Aikman-Scalese - IPC: (01:25) Agree with principle that discussions leading to Board advice, such as Steve's letter to this group, should be open and transparent.
Arun Sukumar: (01:25) :D
Jordan Carter (.nz): (01:30) I would like to express my continued support of the CCWG's decision to have our counsel lead the drafting of the bylaws that can give effect to the CCWG's proposal.
jorge cancio (GAC Switzerland): (01:30) @co-chairs: good to hear that. Looking forward to seeing the responses on possible ways to "objectivize" fiduciary duties
Anne Aikman-Scalese - IPC: (01:30) @Chairs - thank you for requesting the redline of the Bylaws on the AoC and also for certifying the legal questions to our counsel
Jordan Carter (.nz): (01:31) jorge: I too will be fascinated about that.
jorge cancio (GAC Switzerland): (01:32) indeed, Jordan :_)
jorge cancio (GAC Switzerland): (01:32) .-)
jorge cancio (GAC Switzerland): (01:35) Good idea, Leon!
Holly Gregory (Sidley): (01:35) Thank you Leon. We will flag as we think appropriate.
Avri Doria: (01:37) I agree with Greg, if we ask follow questions on questions that have been certified, counsel should be able to respond.
Anne Aikman-Scalese - IPC: (01:37) Agree with Greg that there are different types of questions. We will have to work more rapidly in Dublin and be able to get answers "in real time."
Chris LaHatte: (01:38) isn't it an option if the board doesn't act on an IRP to complain to the Ombudsman?
Jordan Carter (.nz): (01:40) ICANN's SOs and ACs are obviously and clearly already designators.
Jordan Carter (.nz): (01:40) but I am not a lawyer. I support Mathieu's suggestion.
Roelof Meijer (SIDN, ccNSO): (01:40) @Mathieu: good suggestion, I support
jorge cancio (GAC Switzerland): (01:40) Good point, Mathieu
Holly Gregory (Sidley): (01:40) We would welcome the questionwhether the current ICANN model is a designator model
Matthew Shears: (01:40) important question
Anne Aikman-Scalese - IPC: (01:41) RE this question proposed by Mathieu, it would be best to first have the advice provided by Jones Day to the Board in this regard
Jordan Carter (.nz): (01:41) is someone snoring on the call?
Athina Fragkouli (ASO): (01:41) very good question indeed
Rosemary Fei (Adler & Colvin): (01:41) May the notes reflect that counsel can respond to follow-up questions to already-certified questions, when no additional research or significant drafting is required? I that's what I heard.
Greg Shatan (GNSO/CSG/IPC): (01:42) That is my understanding as well.
Jordan Carter (.nz): (01:42) that's what I heard too, Rosemary.
Anne Aikman-Scalese - IPC: (01:42) @Rosemary - that is also what I heard and the transcript should confirm it.
Cheryl Langdon-Orr: (01:42) that was my hearing as well Rosemary but Léon needs to confirm
Anne Aikman-Scalese - IPC: (01:42) Agree the notes should reflect this.
Anne Aikman-Scalese - IPC: (01:43) Many thanks Mathieu! This should be very helpful to summarize the e-mail discussions.
jorge cancio (GAC Switzerland): (01:44) isn't there any technical means to summarize all 200 email we receive every day into one single email? :P
jorge cancio (GAC Switzerland): (01:45) absolutely ;-) "the ccwg digester"
Jordan Carter (.nz): (01:45) that sounds like a sentence for a heinous crime rather than a piece of software
Cheryl Langdon-Orr: (01:46) :-D Jordan
Carlos Raul: (01:46) WOOPS
Jordan Carter (.nz): (01:46) hope everyone's awake now
Keith Drazek: (01:46) Did we just lose Mathieu?
Keith Drazek: (01:46) Ok he's back
Avri Doria: (01:47) it almost sounded like we had reached the nuclear moment, like in all the apocalyptic films
Jordan Carter (.nz): (01:47) the sounds, the sounds
Sabine Meyer (GAC - Germany): (01:48) I was about to ask that - how are the CWG kept in the loop about our progress?
Roelof Meijer (SIDN, ccNSO): (01:48) @Mathieu: are you on Minitel? Not the best connection it seems..
Grace Abuhamad: (01:49) @Sabine, nearly 100 people in CWG are also in CCWG. Also, the Chairs have weekly coordination calls.
Sabine Meyer (GAC - Germany): (01:49) thanks Grace
Julia Wolman, GAC Denmark: (01:49) +1 Sabine - that is a key question
Mathieu Weill, ccNSO, co-chair: (01:50) @Roelof : landline phone. Old technology. Irony detected btw ;-)
jorge cancio (GAC Switzerland): (01:50) on a more serious note: I feel that framing the decision-making processes for exercising the community powers into a consensus or near-consensus model of the community as a whole would adress any perceived or real dangers of capture by parts of the community
Steve DelBianco [GNSO - CSG]: (01:51) http://mm.icann.org/pipermail/accountability-cross-community/2015-October/006125.html
Bruce Tonkin: (01:51) Just to be clear I gave my "personal" views on membership. Each Board member would have different perspectives and the consensus was that we didn;t support the single member model.
Avri Doria: (01:51) But if the ACs and SOs are not sufficuently representative, then where does the Board get its legitiamcy?
Anne Aikman-Scalese - IPC: (01:51) QUESTION: Was there significant public comment on the Second draft report to the effect that SOs and ACs are not accountable enough to support the sole member model?
Matthew Shears: (01:52) + 1 Anne - I suspect not
Christopher Wilkinson: (01:52) @Avri: where does the Board get its legitiamcy?
Anne Aikman-Scalese - IPC: (01:52) Sorry I am only in ADobe connect - not on the call.
Asha Hemrajani: (01:52) Hello all, sorry I am late.
Bruce Tonkin: (01:53) The ACs and SOs currently directly appoint 7 direfctors. The nomiating committee appoints 8 members. The nomaitning committee has a little baorder community invovlement 0 inclouding a voting member form the IETF. That is a compromise - so I agree Avri that we still need to continue to build particiaption in our multi-stakehodler model.
Christopher Wilkinson: (01:53) Well, from my point of view, current legitimacy resides in the appointment of independent directors by the Nominating Committee.
Anne Aikman-Scalese - IPC: (01:53) Hi Asha - welcome.
Avri Doria: (01:53) why do we accept this notion that it is not sufficiently representative?
Roelof Meijer (SIDN, ccNSO): (01:53) Did we lose StevedB?
Jordan Carter (.nz): (01:53) he is still speaking, Roelof
Mathieu Weill, ccNSO, co-chair: (01:53) no Roelof, I'm hearing him loud and clear
Matthew Shears: (01:53) it is amazing to me how we have gone from talking about a SMM to facilitate the exercise of community powers to a discussion on the legitimacy and representativess of the community - so are we saying that the ICANN multistakeholder model is not representative?
Roelof Meijer (SIDN, ccNSO): (01:53) Yep, hear him again
Jordan Carter (.nz): (01:54) maybe get a dial out
Asha Hemrajani: (01:54) Thanks Anne.
Holly Gregory (Sidley): (01:54) Without designator rights it is unclear how you enforce removal of directors or recall of the full board
Becky Burr: (01:55) @Steve - is the enforcement you are talking about Board removal?
Holly Gregory (Sidley): (01:55) Remember that all a designator is is someone with right to select directors
Becky Burr: (01:55) just trying to understand
Greg Shatan (GNSO/CSG/IPC): (01:56) I'm not sure that was remembered by the Board, Holly, based on their email.
Holly Gregory (Sidley): (01:57) Unclear to me whether Board disfavors Sole Designator or any designator
Anne Aikman-Scalese - IPC: (01:57) @ Holly and Greg - that is why we need the basis for the Board's communication about designator model
Steve DelBianco [GNSO - CSG]: (01:58) @Becky -- essentially, yes. Plan B power has to be enforceable by us, or this 2-step plan won't satisfy the community requirements for enforceability
Keith Drazek: (01:58) I thought there was good discussion on the list over the weekend in response to Steve and Jonathan's emails looking for a constructive path forward, but I did think it was based on the sole designator structure.
Jordan Carter (.nz): (01:58) Keith: me too.
Edward Morris: (01:58) agree completely with Jordan
Matthew Shears: (01:58) yep + 1 Jordan
Jordan Carter (.nz): (01:58) Without that, as Holly just said, there's nothing obviously enforceable.
Becky Burr: (01:58) Steve Crocker's note suggests that the objection is to the designator model - single or not: " The Designator model still introduces a new legal structure with powers that are intrinsically beyond the structure we have been using."
Alan Greenberg: (01:59) It would be useful to understand the statuatory rights associated with designator that the board feels are potentially dangerous.
Cheryl Langdon-Orr: (01:59) I may drop off AC room for a short while but will stay in audio
Becky Burr: (02:00) same question - is the IRP actually enforceable?
Sabine Meyer (GAC - Germany): (02:00) and vice versa if a designator model is indeed different from the structure being used now.
Holly Gregory (Sidley): (02:00) only statutory right is selection and removal right
Sabine Meyer (GAC - Germany): (02:00) (was replying to Alan, sorry)
Steve DelBianco [GNSO - CSG]: (02:00) @Bruce -- my proposal was for all 5 powers plus IRP to be enforceable
Julia Wolman, GAC Denmark: (02:00) +1 Jordan. I think legal certainty is important in the future setup
Jordan Carter (.nz): (02:01) Bruce: do you have a comment on my concern about red lines / utimatums being offered ?
Jordan Carter (.nz): (02:01) and my desire to see it stop?
Anne Aikman-Scalese - IPC: (02:01) @Steve - Would your proposal be floated to the CSG at some point?
Becky Burr: (02:01) but who would have standing to bring that kind of IRP?
Chris LaHatte: (02:01) again I ask, if the board doesn't do something where does the ombudsman fit in?
Rosemary Fei (Adler & Colvin): (02:01) While they don't have it by statute, designators may be given the right to veto bylaws and articles amendments.
kavouss arasteh: (02:01) i am dis connecte
kavouss arasteh: (02:01) pls dial me up
Fadi Chehadé: (02:02) Could we focus on enforceability powers? maybe that is the key to our consensus solution
kavouss arasteh: (02:02) pls put ne in the queue
Jordan Carter (.nz): (02:02) Congrats Jonathan!!!!
Brenda Brewer: (02:02) Calling you back Kavouss.
Holly Gregory (Sidley): (02:02) Enforceability is linked to legal status
Alan Greenberg: (02:02) @Chris, the ombudsman can alway be consulted, but I thought that you had no powers to remedy other than to recommend.
kavouss arasteh: (02:02) mathieu
Padmini: (02:02) It might be useful to have a daily bulletin of the points raised in all the emails. Just a thought.
kavouss arasteh: (02:02) brebda
Becky Burr: (02:02) yes - absolutely correct Jonathan
kavouss arasteh: (02:02) brenda
Greg Shatan (GNSO/CSG/IPC): (02:02) It's still not clear that the powers would be enforceable absent a member model. I am concerned with the assumption that they will be.
Jordan Carter (.nz): (02:02) Facts? Good idea.
kavouss arasteh: (02:03) i am disconnected
Jordan Carter (.nz): (02:03) Kavouss: we must get you back.
Fadi Chehadé: (02:03) +1 Jonathan Zuck
Chris LaHatte: (02:03) so isn't it the first step to consult with the ombudsman who can make a statement about the issue?
Bruce Tonkin: (02:03) Hello Jordan - I personally agree with you that red lines are not that helpful right now.
jorge cancio (GAC Switzerland): (02:03) Good summary Mathieu: open mind, constructive approach and focus on further refining the community powers...and I would add: strive for a consensus model for decision-making in the exercise of such powers
Keith Drazek: (02:03) Agree Jonathan
Chris LaHatte: (02:04) if the ombudsman objects to inaction, does not hat not have some meaning?
Jordan Carter (.nz): (02:04) Bruce: thank you for that. Please convey my opinion to your colleagues that they are placing this process at unnecessary risk by using that approach now twice.
Rosemary Fei (Adler & Colvin): (02:04) There are different levels of enforceability; ultimate enforceability requires a legal person with rights who can enforce them.
Jordan Carter (.nz): (02:04) Chris: does it have anything beyond a declaratory effect?
Greg Shatan (GNSO/CSG/IPC): (02:04) When one side brings in their litigator to represent their interests, that is not conducive to the lawyers coming to consensus.
Chris LaHatte: (02:05) it's meant to make a moral statement, but yes, it's only declaratory
Bruce Tonkin: (02:05) @Jonathan - I agree that we shoudl have a clear way to continue to add and evolve accountability mechansisms. My only caveatr is that we continue to work on a cocnesus approach. I think botht eh Baord and the CCWG worry that after the NTIA stewardship is transferred - that any part of the community tries to ram thorugh changes that wouldn't oterwise have been approved in the CCWG process.
Holly Gregory (Sidley): (02:05) CCWG needs to determine "how much enforceability" -- and can it be indirecto or must it be direct. These are all issues thatyou have debated and explored. This is less a matter of any disagreement about law than about how much enforcement is desirable.
Brenda Brewer: (02:06) ALan unmuted
Jordan Carter (.nz): (02:06) But it is clear from our analysis and the public comments what the answer is, Holly. The issue we face is that one stakeholder (the Board) has decided our analysis cannot flow through to our resolution based on it.
Greg Shatan (GNSO/CSG/IPC): (02:06) Maybe the question is "how little enforceability is still enough enforceability?"
Jordan Carter (.nz): (02:07) +1 Alan, I thought that too.
Becky Burr: (02:07) @Holly - first we need to understand what enforceability we would have absent membership or designator.
Bruce Tonkin: (02:07) @Holly - I agree. It ultiamtely comes down to a bit of a risk analsys in terms of how much overhead and change you need versus the size of the problem being dealt with. I still view that fact that the communiyt is appoitning Baord memebrs means fundamentally - it is a low probably that all of tehse directors appointed via a range of different paths - witll somewhow agree to go against the bylaws.
Jordan Carter (.nz): (02:07) None of our chartering organisations are going to approve anything that doens't have consensus here.
Jonathan Zuck (IPC): (02:07) @Bruce, the issue is that the board votes now. This vague reference to a "consensus approach" is a thinly disguised distrust of the community to handle itself and elevates the board, which DOES vote, to final arbiter status and there seems to be broad consensus that the community, however that is defined, should be the final arbiter
Jonathan Zuck (IPC): (02:07) +1 Holly
Bruce Tonkin: (02:08) There does need to be an enforceability mechasnism - is is just that it shoudl be extermeley rare that it is ever needed. In fact as long as the mechansims is there =- it shoudl mean it never gets used.
Leon Sanchez (Co-chair ALAC): (02:08) @Bruce that is the idea
Roelof Meijer (SIDN, ccNSO): (02:08) @Alan: thnx, agreed
Bruce Tonkin: (02:08) A good example is the pwoer of the Baord to vote off a Board member. THe fact it is there means it has ever had to be used.
Jordan Carter (.nz): (02:08) Bruce, that's all that anyone has been proposing.
Asha Hemrajani: (02:09) +1 Alan
Chris LaHatte: (02:09) and that's why there is an ombudsman, so there can be a level of moral persuasion before anyone goes legal
Avri Doria: (02:09) I think the Board's approach to this discussion is all the evidence we need of the inability to enforce anything except by going to court. going to court is failure.
Leon Sanchez (Co-chair ALAC): (02:09) @Bruce I am begining to think we haven't been clear enough in our message that our aim is to not need to enforce any of the powers unless it was absolutely necessary
Greg Shatan (GNSO/CSG/IPC): (02:09) I think we have been pushed back.
Avri Doria: (02:10) and we are doing a good job of falling back.
Greg Shatan (GNSO/CSG/IPC): (02:10) Leon, I think we have.
Leon Sanchez (Co-chair ALAC): (02:10) @Greg I thought so too but now I'm doubtful
Bruce Tonkin: (02:11) @Avri - agree going to court is failure. The abord is competely aligned with you there. Fundametnally the bylaws agreed by the international communiyt, not the laws of one state in one country.
Bruce Tonkin: (02:11) If the Board doesn't follow the bylaws - then enforce agains thte Baord in that rare sitaution.
Anne Aikman-Scalese - IPC: (02:12) Once again, the current power of the Board is the very structure that will be questioned in hearings in Congress because the concern about takeover by gofvernments has arisen within the context of the current structure The notion that we must change the WG recommendation because the Board won't approve it. then the process is backwards. Agree with Jorrdan's summary of the organizational dynamic. .
Becky Burr: (02:12) how Bruce? still unclear how anything is enforceable absent membership or designator model
Greg Shatan (GNSO/CSG/IPC): (02:12) The court would merely be used to enforce the existing IRP decision or the member's exercise of its powers. The court would not engage in a substantive review of the decision.
Becky Burr: (02:12) if someone can answer that question, we can proceed from that point
Jordan Carter (.nz): (02:12) I suspect it would. But it doesn't matter either way.
Jordan Carter (.nz): (02:13) A number of times in this whole process we have arrived at (weak bu real) consensus approaches that are syntheses. If that prospect isn't open, then there is no point carrying on the work.
Edward Morris: (02:14) @Becky, and I at least still need more education about the relative enforceability under the designator model. I'm very uncomfortable relying on the bylaws as contract theory, if required to do so.
Asha Hemrajani: (02:14) @Jordan yes all along I think we have been focussed on the end goals - we all agree and are on the same page when it comes to the fact that we all want to increase /improve accountability
Jordan Carter (.nz): (02:14) Edward, that's unlikely to work for anyone, I wouldn't have thought.
Jonathan Zuck (IPC): (02:15) the problem is that saying what is "wanted" leads to a LOT obfuscation and a low signal to noise ratio
Steve DelBianco [GNSO - CSG]: (02:15) Tijani -- it's here at http://mm.icann.org/pipermail/accountability-cross-community/2015-October/006125.html
Jordan Carter (.nz): (02:15) Asha: that's what you and your colleagues keep saying. but then your actions - how you introduce your feedback etc - put the opposite message across. An opposite message that undermines what you say you're trying to say.
Jordan Carter (.nz): (02:15) and only you guys on the Board are responsible for how you choose to communicate. It's under your control. It's not under ours.
Jonathan Zuck (IPC): (02:16) it's laid out pretty clearly.
Edward Morris: (02:16) @Jordan, yet if you look at our attorneys analysis of designator it is there. Again, perhaps I just need more education.
Jonathan Zuck (IPC): (02:16) +1 Jordan.
Jordan Carter (.nz): (02:16) I think the contract part was in a context of getting multiple designators to work together, e.g. to recal the whole Board
Steve DelBianco [GNSO - CSG]: (02:17) I was silent on Designator move before transition, since I do not know whether Designator is needed to deliver sufficient enforceability of the 5 powers and IRP
Edward Morris: (02:17) I'll take another look - perhaps you just gave me the education I needed. :)
Jordan Carter (.nz): (02:17) Asha, Bruce, etc: I guess I am asking you to exercise a bit of empathy in considering the CCWG's position, and imagine the situation was reversed and you were getitng red lines. And then to take responsibility for the impact of how you communicate your views.
Jonathan Zuck (IPC): (02:18) +1 Jordan. We hear things like "my personal view of the board's position" etc. It's a mess.
Jordan Carter (.nz): (02:18) It's a pretty small request but a pretty important one. It doesn't ask you to change your views on the substance. It asks you to respect your role as a stakeholder at this point in the process.
Bruce Tonkin: (02:18) @Becky - I see your question about enforcement. I am not a lawyer. I have ben hoping that the legal firsms could collectively agree what is enforceable so we can then look at those options.
Anne Aikman-Scalese - IPC: (02:19) aagree with Thomas - this poses a huge credibility problem.
Matthew Shears: (02:19) + 1 we are very close to completly undermining the CCWG process and the ICANN MS model
Becky Burr: (02:19) @Steve, so we need to understand whether the 5 powers + IRP are enforceable absent membership or designator and, if not, whether that is acceptable. We need to establish the facts and then make a judgment.
Asha Hemrajani: (02:19) @Jordan I am committed to work with you to find that the implementation model that we can all agree on
Bruce Tonkin: (02:19) How would you suggest the answer to your question be handled.? SHoudl we simply have a call when you can ask Joens Day with CCWG legal Counsel on the call as well?
Keith Drazek: (02:19) +1 Becky
Jordan Carter (.nz): (02:19) Thomas: I regard it as untenable and intolerably sad, mostly because it is totally unnecessary.
jorge cancio (GAC Switzerland): (02:19) The right path is to refine the community powers within our WPs - and continue therein and outside the conversation with the Board and during the way we will be seeing whether there are good reasons for ruling out certain legal vehicles or not
Bruce Tonkin: (02:19) It does frsutrate me that two law firms that are bot paid by publcc funds are not collaborating more.
Greg Shatan (GNSO/CSG/IPC): (02:19) Bruce, would that be a discussion, a negotiation or a mock trial?
Becky Burr: (02:20) i'm not arguing one way or another, just trying to move forward
Jordan Carter (.nz): (02:20) Bruce: if you want the lawyers to meet, I suggest their clients are in the room too. Because that will help limit the bad behaviour that has been going on from your counsel.
Finn Petersen, GAC - DK: (02:20) +1 Thomas
Mathieu Weill, ccNSO, co-chair: (02:20) @Bruce : Sidley and Adler are collaborating very effectively
Asha Hemrajani: (02:20) @Jonathan Could you elaborate please
Rosemary Fei (Adler & Colvin): (02:20) @Ed and @Jordan, the designator model gives named persons rights in the bylaws that are permitted by statute; the designator can enforce those rights on the theory of the bylaws as a contract. If there are multiple designators, a contract among them might be needed to ensure each designator acts only when the designators collectively agree.
Anne Aikman-Scalese - IPC: (02:20) yes - verry dangerous indeed to throw out ideas because the Board says it won't approve them. This amounts to throwing out the MS model.
Leon Sanchez (Co-chair ALAC): (02:20) +1,000 Mathieu. Sidley and Adler have made a sterling job
Greg Shatan (GNSO/CSG/IPC): (02:21) Bruce, when you bring in a litigator to stake out your position and refute the position of our counsel, that does not engender collaboration.
Holly Gregory (Sidley): (02:21) Bruce, I think the key issue isn't a legal one but one of how much enforceability is desired. For example, the Sole Member provides more than the Sole Designator which provides more than a multiple designator model. r The MEM
Jordan Carter (.nz): (02:21) Is it just me, or does it sound like Avri is speaking from the bottom of the ocean?
Greg Shatan (GNSO/CSG/IPC): (02:21) Ocean.
Asha Hemrajani: (02:22) @Jordan I think Avri has a sore throat, her voice has been like that for a few days
Edward Morris: (02:22) +1 Avri
kavouss arasteh 2: (02:22) I have certain difficulty to hear the speaker
Becky Burr: (02:23) But Holly - do we have agreement between Jones Day and Sidley/Adler regarding the extent to which the Zuck/DelBianco approach is absent membership or designator?
Jonathan Zuck (IPC): (02:23) +1 Avri. This representative issue is a total red herring at this point
Jordan Carter (.nz): (02:23) I wouldn't have thoguht so Becky.
Matthew Shears: (02:23) + 1 avri and jonathan
Jordan Carter (.nz): (02:23) +100 Avri.
Anne Aikman-Scalese - IPC: (02:23) +1 ith Avri and Jonathan. Not representative is a red herring
kavouss arasteh 2: (02:23) Pls add my name to the Zuck Delbianco
kavouss arasteh 2: (02:24) I did amend their compromise. without that I disagree with that approach
Jordan Carter (.nz): (02:24) "The Zuck DelBianco Arasteh train is leavint the station, ladies and gentlemen."
kavouss arasteh 2: (02:24) Pls replace voting with consensus in ZD APPROACH
Mathieu Weill, ccNSO, co-chair: (02:24) is it a runaway train ?
Avri Doria: (02:24) i am in Dc, perrhaps that is metaphorically the bottom of the ocean. i speaking low in a hotel at 3am. and yes, i have had a sore throat for a few days.
jorge cancio (GAC Switzerland): (02:25) are we now discussing "branding"?
Jordan Carter (.nz): (02:26) let's be amateur experts on that too now Jorge. :-)
jorge cancio (GAC Switzerland): (02:26) we should first discuss the subject-matter, I guess
kavouss arasteh 2: (02:26) I agree with Zuck/ Delbinco if my amendment is included mainly replacing voting by consensus
Jordan Carter (.nz): (02:26) jorge: generally helps ... :-)
jorge cancio (GAC Switzerland): (02:27) I don't think we are deciding, but in a conversation which still has a long way to go
Jonathan Zuck (IPC): (02:27) yup. that's the point of enforceability.
Bruce Tonkin: (02:27) Yes @#Mathieu -Sidley and Adler are indeed working very well together. My frustration is not there :-)
kavouss arasteh 2: (02:27) One possible option would be the approach proposed by ZDA
Bruce Tonkin: (02:28) @Greg - what would you suggest is the best way to resolve the legal stand-off?
Greg Shatan (GNSO/CSG/IPC): (02:28) Jorge/Jordan - We have a few people on the call who deal with branding professionally....
Steve DelBianco [GNSO - CSG]: (02:28) I'm really not sure what to say to elaborate, since the key is understanding how we deliver sufficient enforcement for our 5 powers+IRP
kavouss arasteh 2: (02:28) cRITISIM AND ALLEGATION WILL TAKE US TO NOWHERE
Bruce Tonkin: (02:28) I am quite open - and agree with @Jordan taht whatever method is used needs to be public at this stage.
Holly Gregory (Sidley): (02:29) Bruce, I don't think it is a legal standoff.
Jordan Carter (.nz): (02:29) this is a political/power/authority clash, not a legal one.
Edward Morris: (02:29) I am not only not on the train but am committed to stopping the train once it leaves the station.
Steve DelBianco [GNSO - CSG]: (02:29) I said our plan B "Governance Review" could be called by consensus of AC/SOs
kavouss arasteh 2: (02:29) We need to find a way out and looking fior a compromise
Matthew Shears: (02:29) we also need to be sure that ways forward are rfelctive of the public comment and not going off in a directin wihout that input
kavouss arasteh 2: (02:30) I am disconnected for the third time todaye
kavouss arasteh 2: (02:30) Dear Brenda
kavouss arasteh 2: (02:30) May I ask you kindly advise to dial me up again
Greg Shatan (GNSO/CSG/IPC): (02:30) Bruce, I think it requires a change in mindset and approach on the part of the Board/corporation. I'm not sure whether that mindset comes from counsel or from those instructing counsel.
jorge cancio (GAC Switzerland): (02:30) you know there is a saying: not to sell the bear's fur before hunting it down
Keith Drazek: (02:30) @Greg: The CCWG is in reactive mode now becuase the CCWG was informed of the Board's views and red lines late in the process. I think we need to stay the course and follow our processes and consider all comments, including the Board's. This is critical for defending the final proposal. I think Roelof's earlier comment was constructive., i.e. Let's see if we can get what we need within the Board's outline. And if not, then we move forward accordingly. We need to get an answer to the question Becky highlighted earlier regarding standing and enforceability absent membership or designator.
kavouss arasteh 2: (02:30) Please advise to dial me up again
Jordan Carter (.nz): (02:31) A governance review can't lead to an automatic adoption of a proposal though, can it?
jorge cancio (GAC Switzerland): (02:31) +1 Keith
Anne Aikman-Scalese - IPC: (02:31) I disagree with the idea that postponing governance review is a "way forward". Governance review has been the very point of this whole exercise of the CCWG-ACCT for almost a year.
Jordan Carter (.nz): (02:31) that would breach the fidcuiary duties of the Board.
Bruce Tonkin: (02:31) @Holly - I agree that single member, designator, and MEM are didfferent. However Becky seems to think that the MEM gives no enforceability - which is what I am struggling with. We are all aligned that the pwoers need to be enforceable. I am seekign the a simple enforcement solution without major changes in the governance structure.
kavouss arasteh 2: (02:31) Mathieu
kavouss arasteh 2: (02:31) I am disconnected again for the third time
Leon Sanchez (Co-chair ALAC): (02:31) @Kavouss they are dialing you back again
Jordan Carter (.nz): (02:31) and it still creates the forward instability that I discussed before.
kavouss arasteh 2: (02:31) what is going on
kavouss arasteh 2: (02:31) We losrt all tarck today
Leon Sanchez (Co-chair ALAC): (02:32) @Kavouss you should receive a new call anytime now
Greg Shatan (GNSO/CSG/IPC): (02:32) I agree, Keith, but we need to decide whether we are giving the Board a veto over our report.
Bruce Tonkin: (02:32) @Grg - well I can say that I have personally spoekn to the Jones Day Coucnsel and asked them to csahre their advice with Sidley and Adler and at least agree the legal points.,
Anne Aikman-Scalese - IPC: (02:32) How is that different from what we are doing right now?
Jordan Carter (.nz): (02:32) can we certify a question to our Counsel as to whether the mechanism that Steve suggests is enforceable and operative without a member/designator?
Edward Morris: (02:32) The threat of a future governance review alone has the potential of destabilizing the n and n function for years to come. We need to deal with this now regardless of how long the deadline needs to be pushed out.
Brenda Brewer: (02:32) Kavouss, Operator is calling you back. Apologies for connections issues today.
Matthew Shears: (02:32) I am uncomfortable working with the Board's red linbes - what are our redlines?
Holly Gregory (Sidley): (02:32) We have asked several times fo
Asha Hemrajani: (02:32) @Holly @Becky @Bruce - this is what baffles me too - why it is still not recognized that the MEM is enforceable
Asha Hemrajani: (02:33) How can we clarify this better?
Steve DelBianco [GNSO - CSG]: (02:33) @Mathhew -- our Redlines are the 5 community powers and IRP, with adequate enforceability.
Greg Shatan (GNSO/CSG/IPC): (02:33) Asha, why are you convinced that it is?
Jordan Carter (.nz): (02:33) Asha: our counsel have made it clear they don't see the MEM approach as enforceable. it's not a lack of clarity, it's a lack of agreement.
Matthew Shears: (02:33) its degrees of enforceability
Chris LaHatte: (02:34) put all the lawyers I a room and hot tub the issues in dispute
Asha Hemrajani: (02:34) @Jordan and that is what baffles me - we should talk about this more - directly
kavouss arasteh 2: (02:34) We should not kill MEM but to find out its eweak points
Holly Gregory (Sidley): (02:34) We have asked several times now to resume the discussion with Jones Day. But we believe that the issue isn't a legal issue. At its heart is how much enforceability is acceptable to CCWG.We are happy to set out the trust/enforcement continuum again. It is described in our recent slides setting forth the sole designator model
Avri Doria: (02:34) but the lawyers have already given us the facts.
Becky Burr: (02:34) I'm ok talking about degrees of enforceabiilty so long as i know what they are
Anne Aikman-Scalese - IPC: (02:34) I think we already have the facts and they have been provided by Holly and Rosemary in their advice lettter in LA.
Jordan Carter (.nz): (02:34) Jonathan: I don't mean to call into question continuous improvement. That has to be possible. We don't want to freeze ICANN. I don't agree with the Board's argument that any of these models represent a major change. They are teh ones that have argued that; they are the ones who have created the problem of any future change being treated the same way.
Jonathan Zuck (IPC): (02:35) @Holly I don't think we can accept a solution that requires us rely on trust
Jordan Carter (.nz): (02:35) Jonathan: neither.
Matthew Shears: (02:35) trust has not worked well in the past
Holly Gregory (Sidley): (02:35) Consider having us work with Steve and team on the proposal that has been put on the table.
Jonathan Zuck (IPC): (02:36) @Jordan, I'm sure we agree more than disagree. I guess I'm just saying that we should talk about this proposal differently rathe than calling it "temporary." EVERYTHING is temporary.
Jordan Carter (.nz): (02:36) I think Holly and Rosemary working with Steve and Zuck and Kavouss and whoever to flesh out and understand this is helpful.
Asha Hemrajani: (02:38) @Becky happy to try to understand what your view is on the different levels of enforceability are ie why you believe the MEM offers a (lower?) level of enforceability.
kavouss arasteh 2: (02:39) Jordan, we fully understand your valid points but let us explore the Plan B ( zsk) and refine that
Jordan Carter (.nz): (02:39) kavouss, that's what I was agreeing with
kavouss arasteh 2: (02:39) tks
Holly Gregory (Sidley): (02:39) There are many levels of enforceability
Steve DelBianco [GNSO - CSG]: (02:39) Hard to see enforceability as a binary question. Better to let the lawyers tell us HOW MUCH enforceability we get with Member, Designator, and just Bylaws + binding IRP
Becky Burr: (02:40) Asha - honestly, my impression is that the lawyers disagree on the extent to which the MEM is enforceable. It's not me
Matthew Shears: (02:40) we need srong enforeceabilty to ensure that things happen post transitoin
Jonathan Zuck (IPC): (02:40) I don't understand the concept of "degree of enforceability. I don't understand levels of enforceability. I truly believe it is more binary than that
Jordan Carter (.nz): (02:40) it
Becky Burr: (02:40) agree Steve
kavouss arasteh 2: (02:40) We need a full legal assessement why MEM does not work
Jordan Carter (.nz): (02:40) s a question of a) what can be enforced and b) how
Edward Morris: (02:40) Jones Day also said a stand alone delegate model was a possibility: it legally was not.
Jordan Carter (.nz): (02:41) "less" enforceability on a "spectrum" means 1) fewer things can be enforced and 2) fewer things can be enforced directly.
kavouss arasteh 2: (02:41) bRUCE
Asha Hemrajani: (02:41) +1 Bruce
Becky Burr: (02:41) Kavouss - I'm not saying MEM doesn't work, i am saying that i don't believe that there is agreement on that point by the folks with expertise
kavouss arasteh 2: (02:42) Bruce, pls kindly concentrate on Plan B ( ZSK)
kavouss arasteh 2: (02:43) sIMPLE, ENFORCEABLE AND BALANCE
Jordan Carter (.nz): (02:43) Why did you think that developing an alternative plan through a closed process would ever work, out of interest, Bruce?
Steve DelBianco [GNSO - CSG]: (02:43) @Kavous -- the note I sent Saturday includes the 5 powers + IRP as enforceable. And a Plan B to force Membership model if needed to overcome board resistance to enforcement
Greg Shatan (GNSO/CSG/IPC): (02:43) I don't think the Board proposal is particularly simple. That's not why it has enforceability problems.
Anne Aikman-Scalese - IPC: (02:44) The MEM is not at all simple. There are numerous complex questions related to the MEM and our counsel has stated there are enforcement problems with this.
kavouss arasteh 2: (02:44) yES sTEVE
Asha Hemrajani: (02:44) @Becky, thanks for your frank feedback on that. I am also baffled by that differing view. But we are the "client" and we need to be convinced /understand better why the lawyers disagree
kavouss arasteh 2: (02:44) lET US WORK ON zsk
Matthew Shears: (02:44) + 1 Anne
Julia Wolman, GAC Denmark: (02:44) +1 Greg.
Avri Doria: (02:44) well it would work by lilencing those who disagree, leaving them out f the room. and when the white smoke comes out of the room, those who were excluded would seem like destructive influences if thye disagreed.
fadi chehade: (02:44) should we get an independent legal academic to opine on the enforceability of a binding arbitration?
Jordan Carter (.nz): (02:44) +1 Anne
Julia Wolman, GAC Denmark: (02:45) and +1 Anne
Anne Aikman-Scalese - IPC: (02:45) @Fadi - that is certainly an oversimplified question. The MEM is not simply a matter of the enforceability of binding arbitration.
Jordan Carter (.nz): (02:45) Fadi: would an independent legal academic be an improvement on indepenedent legal counsel? If so, how?
Greg Shatan (GNSO/CSG/IPC): (02:45) Enforceability of binding arbitration, as an abstract concept, is the least of our problems, if it is a problem at all.
Becky Burr: (02:45) why bring in yet another party and delay getting to the bottom of the matter Fadi?
kavouss arasteh 2: (02:45) Any competition between the CCWG legal Team and ICANN Consel to be avoided it would not be productive
Chris LaHatte: (02:46) someone with international standing may be valuable rather than a US lawyer
Anne Aikman-Scalese - IPC: (02:46) Agree with Holly - we have already received the advice on enforceability and it is written.
Greg Shatan (GNSO/CSG/IPC): (02:46) The issue is whether the other powers are enforceable based solely on the community's exercise of that power.
Chris LaHatte: (02:46) New York Convention makes the arbitration binding anyway
Jordan Carter (.nz): (02:46) Chris: it would be quite a brief-up process :-)
Jordan Carter (.nz): (02:46) Seems to take about three months...
Greg Shatan (GNSO/CSG/IPC): (02:47) Chris, every lawyer comes from somewhere....
Becky Burr: (02:47) Chris - only if the parties agree that it is enforceable
Anne Aikman-Scalese - IPC: (02:47) We talk about whether SOs and ACs will agree with the CCWG proposal but the MEM says full consensus is required to initiate any enforceement at all.
kavouss arasteh 2: (02:47) There is no point that Sidley/ Austin continue to push for the SMM
Becky Burr: (02:47) that's a good idea
kavouss arasteh 2: (02:48) tHEY ARE KINDLY REQUESTED TO LOOK AT THE COMPROMISE WHICH IS BEING BUILT
Greg Shatan (GNSO/CSG/IPC): (02:48) Enforceability of binding arbitration is a red herring.
Chris LaHatte: (02:48) parties won't enter an arbitration without at least implied understanding that this would be binding, otherwise why engage at all?
Steve DelBianco [GNSO - CSG]: (02:48) "Spill the Board" is a very disruptive and difficult thing to do. I suggest we only consider it as an "enforcement" power for plan B -- where we would impose Membership model
jorge cancio (GAC Switzerland): (02:48) To clarify my point os diversity: strong diversity requirements would adress the comments alleging a low representativity of the SO/ACs. We should tackle this issue. This would help future moves topossible model changes.
Becky Burr: (02:48) Kavouss, i don't hear anyone pushing for anything excepting understanding our requirements
Steve DelBianco [GNSO - CSG]: (02:48) +1 Jorge
kavouss arasteh 2: (02:48) dEFENDING smm IS PUSHING BECKIE
Greg Shatan (GNSO/CSG/IPC): (02:49) Without a party with legal personhood and the right to enforce that arbitration, the "enforceability of binding arbitration" is useless.
Avri Doria: (02:49) I agree Steve, it is pwoerful only if youbeleive we would actually do it. it is so disruptive i do not beleive we would ever do it.
jorge cancio (GAC Switzerland): (02:49) And to clarify my comments on consensus/near consensus: requiring consensus or near consensus for the exercise of community powers adresses perceived or real fears of capture of the community powers by fractions of the community.
Becky Burr: (02:49) sorry Kavouss, i do not think that is a fair characterization of what Holly is saying
Jordan Carter (.nz): (02:49) Neither do I, Becky.
jorge cancio (GAC Switzerland): (02:49) Hence strong diversity and consensus/near consensus make the community powers much more legitimate
Steve DelBianco [GNSO - CSG]: (02:49) @Avri -- if the board and legal team stiffed us on enforcement of any of the 5 powers or IRP, we'd be angry enough to spill the board!
kavouss arasteh 2: (02:49) We may build up enforceablity around the ZSK
Anne Aikman-Scalese - IPC: (02:50) Agree we have the facts and there is simply a disagreement between the Board and the CCWG. Do not agree that some later governance review process will be any different from what this CCWG has already done.
Jordan Carter (.nz): (02:50) Anne: it will get less far.
Avri Doria: (02:50) Steve, i disagree. we might get angry but we are wmps.
Jordan Carter (.nz): (02:50) what's a wmps?
kavouss arasteh 2: (02:51) iT IS A MATTER OF TIME AND CAREFULL EXAMINATION .WE ARE IN HURRY NOW HAVING 10 MEETING IN 5 DAYS
Becky Burr: (02:51) +1 Avri
kavouss arasteh 2: (02:51) wE NEED MORE TIME AND PATIENCE
Avri Doria: (02:51) we all are. we are afriad to be unnice. and in the end alwasy back down., hoping it will be beter next time.
Jordan Carter (.nz): (02:51) Avri: I don't sense that that is the mood of this group
Jordan Carter (.nz): (02:51) (was wmps=wimps?)
Greg Shatan (GNSO/CSG/IPC): (02:51) yes, jordan
Anne Aikman-Scalese - IPC: (02:52) @Kvouss - You may be right regarding the problem of time pressure. So why was the CCWG subjected to statements by NTIA and Ira Magaziner from the front of the room about "you better hurry up."?
Matthew Shears: (02:52) it would be a mistake to defer governance review unless there was a way to ensure it would actually happen
kavouss arasteh 2: (02:53) Full Member on paper and half Mmember in practice does not work
Chris LaHatte: (02:53) don't we have to ask the question, what is the legal enforcement we see as the risk? and isn't this far more likely to be ICANN as the party at the other end of litigation rather than the SO or AC?
David McAuley (RySG): (02:53) hard to hear
Keith Drazek: (02:53) Hard to hear you Rosemary
kavouss arasteh 2: (02:53) ACs may not participate at full member
Becky Burr: (02:53) not sure I understand Chris
Pär Brumark (GAC Niue): (02:54) +1 Chris!
Chris LaHatte: (02:54) we can't debate issue of the board or other parties rejecting an IRP, unless we have a clear idea of the scope of any such cases
Holly Gregory (Sidley): (02:54) @Steve, then the spill the board power needs to be granted in a way to ensure enforceability
Bruce Tonkin: (02:55) THanks @Holly and @Rosemary for your helpfull answers. I have some engineer ideas for how to solve - but I do think we culd have quite a focussed disccusion about how to enforce removal of directors.
Alan Greenberg: (02:55) Board's proposal of having the Chair act as the enforcer is not acceptable. We are told there are other options, but Board has not been forthcoming in suggesting what those are so we can test them.
kavouss arasteh 2: (02:55) Once again, full Mmember accompanied by Voting and opt out of ACs is impractical
Anne Aikman-Scalese - IPC: (02:55) MEM ISSUEs Group requires individuals to act (unfair) or to make a decision to act as an inincorporated association AFTER THE FACT so it has no standing to bring the enforcement action.
Jordan Carter (.nz): (02:55) It's a cooked up idea in a dark room, to be as unkind as possible.
Anne Aikman-Scalese - IPC: (02:55) "unincorporated" no "incororated" - sorry
Jordan Carter (.nz): (02:56) it takes us right back to the Member problem and pushback we got in our first draft proposal
Greg Shatan (GNSO/CSG/IPC): (02:56) Gee, that makes member sound simpler than MEM....
kavouss arasteh 2: (02:56) Becky
Avri Doria: (02:56) Member is the simplest.
Jordan Carter (.nz): (02:56) Greg: there's a funny old reason for that.
kavouss arasteh 2: (02:57) What is now describing is not pushing in your views
Anne Aikman-Scalese - IPC: (02:57) Member is MUCH SIMPLER than MEM because it is the subject of a governing statute and rights and powers are clear.
Greg Shatan (GNSO/CSG/IPC): (02:57) We could require that the Board members be personally named in any suit as well. That is at least equitable.
Avri Doria: (02:57) our voting mechansims in the member was a bit gothic, but essentially member is very straightforward.
Jordan Carter (.nz): (02:57) MEM's standing makes it implausibly complex in the best case.
Matthew Shears: (02:57) so MEM is as complicated and unested as the SMM supposedly is?>
Greg Shatan (GNSO/CSG/IPC): (02:58) We need to disentangle the decision making mechanism relating to the member, but that's not a sufficient reason to shoot it in the head.
Chris LaHatte: (02:58) @greg, who would stand for the board with that risk?
Jordan Carter (.nz): (02:58) Far more so, Matthew. It's more novel. And it hasn't been stress-tested..
Avri Doria: (02:58) yes Matthew
Greg Shatan (GNSO/CSG/IPC): (02:58) Chris, who would stand for chair of a SO/AC with that risk?
Sabine Meyer (GAC - Germany): (02:58) +1 Greg
Chris LaHatte: (02:58) not me
Greg Shatan (GNSO/CSG/IPC): (02:58) Chris, you have made my point.
kavouss arasteh 2: (02:58) That proposal that the chair would be legal responsible for the process should be changed
Edward Morris: (02:58) +1 Greg
Jordan Carter (.nz): (02:58) NO
Jordan Carter (.nz): (02:59) NO NO NO
Jordan Carter (.nz): (02:59) (just to be clear. :-) )
Anne Aikman-Scalese - IPC: (02:59) Forcing individuals to take enforcement action is a definite "chilling effect" on the enforcement mechanism.
Jordan Carter (.nz): (02:59) it's a fundamental breach of the multistakeholder appraoch
Bruce Tonkin: (03:00) @Alan - I think the baord prposed chairs as one possible method, the other methods - we set out several methods in our public comments - wiich included forming unincorporated bodies much like the CCWG proposal.
Chris LaHatte: (03:00) I raise the concept of the ombudsman again...sorry to be a broken record
Jordan Carter (.nz): (03:00) at least we only proposed one, Bruce ;-)
Jordan Carter (.nz): (03:00) Mathieu's summary is recognisable to me - it is the summary we had at Istanbul in March
Bruce Tonkin: (03:00) The Baord was not prresriptive about how to form the legal person. I personally supported using teh chairs as I thuoght that would be simple - but accept that you have a different view.
Jordan Carter (.nz): (03:01) who would have thought that introducing a whole new set of stakehodlers and going back to teh beginning would see us... you know... going back to the beginning?
Jordan Carter (.nz): (03:01) <dreams of Deja Vu>
Becky Burr: (03:01) Chris, I believe that the view of the community is that the ombuds role as currentlyl constructed is not sufficiently independent and transparent
Becky Burr: (03:01) those issues are to be addressed in WS2
fadi chehade: (03:01) should we enagage with with them?
Chris LaHatte: (03:01) then add some guts to my bylaw
Anne Aikman-Scalese - IPC: (03:01) If this is the case and there is insufficient Accountablity at various levels of ICANN, then Robin's e-mail is correct and ICANN is not mature enough to take over the oversight of the IANA functions.
Steve DelBianco [GNSO - CSG]: (03:02) +1 Becky, and Ombudsman lacks any obvous power to enforce decisions
Cheryl Langdon-Orr: (03:02) agree with you absolutely Mathieu
Grace Abuhamad: (03:03) Recordings and Transcripts for Transiton Program Facilitation calls are here: https://www.icann.org/resources/pages/transition-facilitation-2015-09-23-en
Chris LaHatte: (03:03) but if I go public with criticism, is that important? does it carry weight?
Jordan Carter (.nz): (03:03) The Jordan variant on the ZuckDelBiancoArasteh should be borne in mind too. Which is that the underlying enforceability comes from the designator approach.
Steve DelBianco [GNSO - CSG]: (03:03) +1 Jordan
Matthew Shears: (03:03) + 1 Jordan - it should also be considered
Steve DelBianco [GNSO - CSG]: (03:03) Designator may be needed to deliver enough enforceability
Matthew Shears: (03:03) we should not write off the designator approach
Jordan Carter (.nz): (03:03) the designator bit is the means
Becky Burr: (03:04) isn't that how it works now?
Rosemary Fei (Adler & Colvin): (03:04) Maybe designator is what ICANN is already
Avri Doria: (03:04) for clarity, have we given up on SM and moved to SD as our rference?
Jordan Carter (.nz): (03:04) Rosemary: not sole designators tho, and not recognised in the bylaws
Matthew Shears: (03:04) we should not give up on anything until after the public comment analysis is done
Holly Gregory (Sidley): (03:04) That is precisely how it works now.
Jordan Carter (.nz): (03:04) Avri: I certainly don't believe so.
Pär Brumark (GAC Niue): (03:04) Thx all!
Sabine Meyer (GAC - Germany): (03:04) @Holly thank you for putting it so clearly.
Jordan Carter (.nz): (03:04) thanks all, useful conversation all in all
Edward Morris: (03:04) Avri, neither do I
Rosemary Fei (Adler & Colvin): (03:05) @Jordan, right, currently not sole designators, and not explicit in bylaws.
Jonathan Zuck (IPC): (03:05) don't believe so. I haven't given up on delaying the transition and implementing the SM model with the NTIA protection in place
Holly Gregory (Sidley): (03:05) would be good to hear Jones Day view on what model ICANN currently has.
Bernard Turcotte Staff Support: (03:05) bye all
Keith Drazek: (03:05) We must follow our process and assess all public comments and document our assessment.
Sabine Meyer (GAC - Germany): (03:05) +1 Holly
Anne Aikman-Scalese - IPC: (03:05) There is in fact no agreement on a "way forward".
Rosemary Fei (Adler & Colvin): (03:05) Statute trumps bylaws, if they are inconsistent
Avri Doria: (03:05) back to sleep, hoepfully this ws just a nightmare.
Becky Burr: (03:05) thanks and good night everyone
David McAuley (RySG): (03:05) bye all
Matthew Shears: (03:05) thanks
Markus Kummer: (03:05) Bye all
Keith Drazek: (03:05) We need to remember that other commenters raised questions and concerns, in addition to the Board.
Athina Fragkouli (ASO): (03:06) bye all
Jordan Carter (.nz): (03:06) bye all, go do some work ;-)
Mathieu Weill, ccNSO, co-chair: (03:06) Thanks all !