[ALAC] [IANA-issues] CLARIFICATION: Questions on Accountability Proposals

[Alan Greenberg]

Well, you will recall that my preference is not to have the ability 
to take action except in the case of a Board refusing to step down.

But if fact, the need to indemnify just decreases the chance that 
ICANN would defy the comunity.

At 31/05/2015 01:24 PM, Seun Ojedeji wrote:
>Hi Alan, all
>
>Thinking aloud here: By all these legal stuff, ain't we creating an 
>avenue for coup/gaming in near future? Why do we want to transition 
>into a phase where SO/AC would be so exposed and where ICANN would 
>become so distracted with bearing legal cost that may arise as a 
>result of one external organisation charging an SO/AC legally.
>
>I am yet to be convinced of the need permit such legal 
>enforceability by the community as i think the possible 
>disadvantages would most likely outweigh its advantage. I think the 
>legal suing route should always be between ICANN (as an 
>organisation) and its client (contracted parties).
>
>While i agree with Olivier that this may never happen, i don't think 
>such option should even be possible. As we may be surprised that it 
>would test the creativity of some members of the community.
>
>Regards
>
>On Sun, May 31, 2015 at 5:33 PM, Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca> wrote:
>I thought that this was clear from the teleconferences, but I guess not.
>
>The concept of having legal status to allow, in the extreme, court 
>action, also brings the possibility of action against legal 
>counterpart of the AC/SO. ANY such provisions REQUIRE that ICANN 
>indemnify and cover all costs associated with these rights. If we 
>cannot get that written into the Bylaws and binding, all such 
>"enforceability" rights are not a possibility.
>
>And to be clear, yes, ICANN would have to indemnify us (individuals 
>and AC/SOs) for all costs involved in suing ICANN (that is a common 
>clause in some contracts).
>
>Alan
>
>
>At 30/05/2015 10:04 PM, Alan Greenberg wrote:
>The ALAC and IANA-Issues meetings last week brought a lot of clarity 
>to the position of At-Large with respect the CCWG-Accountability Proposals.
>
>One area where participants seemed to hold varying opinions was to 
>what extent the new accountability measures need to be "enforceable".
>
>For a power given to the community to be enforceable, the community 
>or its representatives ultimately need to be able to go to court if 
>ICANN (ie the ICANN Board) does not honor the communities 
>directives. That doesn't mean that anyone WILL sue, but the right 
>and therefore the possibility is there.
>
>Currently, we have no such right. Although there have been numerous 
>times where parts of the community (at times large parts) have been 
>dissatisfied with Board action, it is not clear that IF we had the 
>planned powers at that time, would we have used them.
>
>In a typical case, although some parts of the community may be 
>dissatisfied, others were delighted with the decision. In a case 
>such as the creation of "digital archery" to address the order in 
>which new gTLD applications would be processed, pretty much everyone 
>was dissatisfied, but it is far from clear it was an issue that 
>warranted extreme action.
>
>If there is no formal enforceability, then we would rely on good 
>faith and trust to address points of contention. In the case of 
>failure, most parties seem to agree that removal of the Board (or 
>selected parts of it) must be fully enforceable.
>
>The current CCWG proposal calls for COMPLETE enforceability. This 
>implies certain structural changes.
>
>Here are several questions. This message is also being sent to the 
>IANA Issues list. Only one reply is needed. Please reply by Monday 
>if at all possible.
>
>1. Do you believe that failing anything else, we must have the 
>ability to remove parts of or all of the Board?
>
>2. With the exception of Board member removal, do we need legal 
>enforceability of can we rely on good faith (and Board member 
>removal if you supported that).
>
>3. If the final CCWG proposal calls for full legal enforceability, 
>is that sufficient reason for the ALAC to not ratify it?
>
>Alan
>
>
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>
>
>--
>------------------------------------------------------------------------
>Seun Ojedeji,
>Federal University Oye-Ekiti
>web:     <http://www.fuoye.edu.ng>http://www.fuoye.edu.ng
>Mobile: +2348035233535
>alt email:<http://goog_1872880453> 
><mailto:seun.ojedeji at fuoye.edu.ng>seun.ojedeji at fuoye.edu.ng
>
>The key to understanding is humility - my view !
>
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