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

[Carlton Samuels]

Whatever one might say, this guy thinks and is very analytical.

I'm least surprised with the reasoning supporting his position.

-Carlton


==============================
Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
=============================

On Sun, Oct 11, 2015 at 11:27 AM, Maureen Hilyard <maureen.hilyard at gmail.com
> wrote:

> 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>
>
> Greetings,
>
> 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
> analysis.
>
> 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.
>
>
> Cheers,
>
>
> 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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