[ALAC] Fwd: [ccnso-council] A plea for time

Maureen Hilyard maureen.hilyard at gmail.com
Sun Oct 11 16:27:23 UTC 2015

FYI - a response to the ccTLD community from Board member Chris Disspain re
the Board's proposals for CCWG Accountability
---------- Forwarded message ----------
From: "Chris Disspain" <ceo at auda.org.au>
Date: 12/10/2015 5:06 am
Subject: [ccnso-council] A plea for time
To: "ccNSO Council" <ccnso-council at icann.org>, "ccNSO Members" <
ccnso-members at icann.org>
Cc: "CCWG Accountability" <accountability-cross-community at icann.org>


As we approach ICANN Dublin I have been asked by some of my ccTLD
colleagues to set out clearly why as a ccTLD manager I support the Board
proposals for improving ICANN's accountability as part of the transition.

In essence for me it’s all about time.

I believe that we, the community, can get the enhanced accountability we
want now without the need for wholesale structural change. I'm not against
change or indeed any of the models being proposed but I am against making
such changes without carefully considering them over time. There is a
significant amount of work to be done before deciding to make such
important structural changes and all of that will take time and more
research and stress testing and unforeseen consequence analysis and impact

In essence the Board has supported the CCWG’s proposed fundamental bylaws
and the binding IRP and has suggested that there be a Community IRP and a
further fundamental bylaw setting in place an ongoing improvement mechanism
that will allow the community to take the necessary time to consider the
structural changes and to have confidence that the proposals arising from
such a process will be implemented.

I believe that the Community IRP does provide the community with the rights
it seeks and that it can be implemented in a timeframe that does not
jeopardise the transition. The Community IRP is an independent arbitration
process for hearing community claims that the Board has acted outside of
its by-laws. Under the process there is a legally enforceable and
contractual obligation on ICANN to comply with a decision of the
arbitration panel.

I believe that the community find ourselves in our current difficult
situation because, with the best of intentions, the CCWG’s attorneys have
been instructed to come up with models that deliver ‘the highest possible
levels of enforcement’. It is not that the Community IRP cannot deliver the
enhanced accountability that we want but rather that it is perceived, by
some, as inadequate because there is a different mechanism that delivers a
higher level of enforceability.

The CCWG appears to be requiring a mechanism that allows the community (in
whatever guise we finally agree is acceptable) the absolute final say. The
right to step over the Board's fiduciary duty without any check or balance
in place to allow for the testing of the Board's claim that acting would
indeed be in breach of such duty.

I firmly believe in the corporate governance structures adopted by most
corporate bodies around the world. Board members are appointed to manage
the affairs of the organisation on the understanding that they are legally
bound to act in the best interests of the organization rather than any one
member or community. Such best interests are set out in the by-laws - in
ICANN's case for example, the security and stability of the Internet as a
whole. The Board has a fiduciary obligations to act in that way.

The ICANN Board has proposed the Community IRP as binding arbitration. The
CCWG’s attorneys have said that the Board can refuse to implement such a
binding arbitration decision if it claims that to implement it would be a
breach of its obligations to act in the best interests of ICANN. This is
true BUT the community representatives can then go to court and a court
will enforce the arbitration decision if it disagrees with the Board's
view. In my opinion this is precisely the type of safeguard we need to have
in place because it ensures that an elected board made up of
representatives of the multi-stakeholder community will always act, first,
in the interests of a stable and secure Internet and it puts in place an
independent arbiter to decide, in the final analysis, if the community or
the board is right.

The alternative, it seems to me, is to create, now, a system where
fiduciary duty is abandoned and the will of the community holds sway. That
is in effect what happens under the membership model as described by the
CCWG’s attorneys. This may well be acceptable in the future when all of the
nuances have been thought through and the necessary community conflicts and
ethics rules, accountability mechanisms and disclosure requirements have
been agreed. But it will take time and testing and a fuller discussion.

Fiduciary responsibilities and duties are there for a reason. I think that
some in the community feel that the Board and ICANN legal sometimes use the
‘cloak’ of fiduciary responsibility to avoid doing what the community
wants. Whilst I don’t believe that is true I do empathise with the feeling.
To my mind the solution (at least at this time during the transition) is
NOT to create a mechanism under which fiduciary duty is held by no one but
rather to create a mechanism where the community can test the Board's
claims about such duty. The Community IRP as suggested by the Board does
just that.

I want to stress again that I am not against any of the proposed models put
forward by the CCWG. But I can't agree the models at this stage because I
don’t believe we have enough detail and I think the community as a whole
should take their time in considering making such important changes. And I
do not agree with those who claim that "we must do it now because it's our
only chance".

I am very much looking forward to spending time with my ccTLD colleagues
during the Dublin meeting and hope we will have the opportunity to talk,
and not just about the transition.


Chris Disspain | Chief Executive Officer

.au Domain Administration Ltd

T: +61 3 8341 4111 | F: +61 3 8341 4112

E: ceo at auda.org.au | W: www.auda.org.au

auDA – Australia’s Domain Name Administrator

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