[lac-discuss-en] [IANA-issues] Fwd: Re: CCWG Statement v07 as requested.

Mon Sep 7 01:03:54 UTC 2015

Christopher:
To your #1, here's what we're working with. Current corporate governance
doctrine - and the presumption in what is termed 'statutory and fiduciary
responsibilities' is that once chosen and seated, a director discards any
obligation to his tribe or group and retains no fealty to the
sending/selecting organisation.

His/her obligations and fealty now are solely to ICANN, the corporation.

You and I would think that it is the sending/selecting organisation that
should be accountable for the bad seed and be the lead in  any clean up.
But if you follow the logic of the current doctrine you will see how you
could arrive at the position that any of the stakeholder classes now have
standing to petition removal.

As to the matter of 'independent' directors, it depends on what you think
independent means in this context. Maybe a closer look as the requirement
and suggested profiles of the NomCom chosen directors you might have
another take on it.

I take your #2 as given.

-Carlton

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

On Sat, Sep 5, 2015 at 2:01 PM, CW Mail <mail at christopherwilkinson.eu>
wrote:

> Alan, Carlton:
>
> 1. Regarding the removal of Directors, (a) SOs and ACs _appointed_ their
> Directors in the first place. So, who is responsible for the Directors that
> they have got?
> (b) NomCom appoints _independent_ Directors. My comments on this have
> already been posted. The whole point of having independent Directors is to
> create a check and balance in the Board.
> If any SO can initiate (even threaten to initiate) removal, what hope for
> the internal checks and balances?
>
> 2. Regarding Competition and other Regulatory matters, I read somewhere
> in section 3 that competition would rely on market mechanisms. That is
> ludicrous in this market.
> The whole point of regulatory responsibilities for competition is to
> address issues which are NOT resolved by market mechanisms, and there ARE
> some.
>
> Of course there are other regulatory issues that ICANN has failed to
> address recently. e.g. .XYZ, .SUCKS, .VIN etc.)
>
> Regards
>
> CW
>
> PS:   I find it increasingly difficult to handle the volume of all this
> stuff. How to cross reference the CWG report, the CCWG report the At Large
> report, the Board and Jones Day. Impossible.
>
> PPS: I read the Sidley proposals  for Fundamental Bylaws. Those would
> make it impossible for the Board to demur from the SOs in the event of GAC
> contrary advice. I believe that to be deliberate.
>   I note that several GAC members have already perceived that game being
> played behind their backs.
>
> On 05 Sep 2015, at 19:17, Carlton Samuels <carlton.samuels at gmail.com>
> wrote:
>
> Language really does matter.
>
> So, I agree with most of the edits. But I so too would have liked to see
> more forceful language use in the ALAC's responses, especially in regard to
> the *Section 3: Principles.  *And then, I also have philosophical
> differences with elements that the ALAC seems to be endorsing.
>
> Regarding Para 154 et. al., we should be bold and write the language we
> would have liked to see.  I have learned from experience that you must
> always take care to write your own self explicitly in organisational
> principles. For Luddites and fellow travelers are forever with us and they
> tend to dumb down on principles.
>
> Regarding Para 199, again, let's rubbish this exercise in sophistry.
> Sweet bleeding Christ, what chutzpah!  The writer here actually says that
> decisions about the DNS have ALWAYS and must remain 'neutral and judgment
> free'!.  In what universe? Call it what it is, a squalid lie.
>
> Para 218 again is a deviant operation lurking in plain sight, party to a
> neo-liberal political economy that enables a standing bit of ICANN tom
> foolery; ICANN is not a regulator. Its like the cuckoo; lay your eggs in
> some other poor bird's nest and let 'em feed and groom your big ass chick,
> they dumb enough not to recognize a bastard. ICANN really wants to remain
> care-free from what happens in  the market it created, that it imposes
> obligations for to all of us, sustains in many ways yet wishes to remove
> itself from the duty of care from the aftermath. This position must be
> rejected for cause.
>
> As it relates to Section 7, this is where I differ philosophically from
> the trending ALAC position. However, you might wish to revisit this
> business of having directors lockboxing certain rights in lieu of
> appointment.
>
> We still have the law - and the case law - of the State of California to
> contend with. Now, for a corporate entity domiciled in California and
> subject to California and U.S laws, libel, slander and defamation are not
> the same in law as say the UK or even Jamaica. But certainly the question
> of how much of 'coercive' you can get done before you impinge on a
> constitutional right is now live. The thing is one cannot sign away a
> constitutional right, even if you're ignorant.  Plus we are still a long
> way away from figuring out what is the makeup of 'statutory and fiduciary
> responsibilities' imposed by California law on directors.  The law there
> does not suppose they be lapdogs.
>
> Finally, while I generally support Sebastien's Minority Statement, his
> alternative proposal to removal of only 7 members of the Board during a
> given year is also not much more desirable.
>
> Quite apart from the prospect of reducing directors to lapdogs, I do not
> think you can edit out the tenets of natural justice to which each director
> is born much less to coerce one to give up one's constitutional rights in
> lieu of a Board seat. There is something malodorous about that concept so I
> would reject that on principle.
>
> It is far better to have a framework with a third of the Board is subject
> to natural renewal at a frequency less than the natural appointment
> duration of each board member - say every 2 years - than invoke a process
> that might actually take more years to complete.
>
> Best,
> -Carlton
>
>
>
>
> ==============================
> Carlton A Samuels
> Mobile: 876-818-1799
> *Strategy, Planning, Governance, Assessment & Turnaround*
> =============================
>
> On Fri, Sep 4, 2015 at 2:01 PM, Alan Greenberg <alan.greenberg at mcgill.ca>
> wrote:
>
>> Sebastien has sent in the following comments.  If anyone has any support
>> or concerns, please let us know, preferably on the wiki.
>>
>> Alan
>>
>>
>> Date: Fri, 4 Sep 2015 20:30:27 +0200
>>> Subject: Re: CCWG Statement v07 as requested.
>>> From: Sébastien Bachollet <sebastien at bachollet.com>
>>> To: Alan Greenberg <alan.greenberg at mcgill.ca>
>>>
>>>
>>> Thanks Alan,
>>> Please find attached the V7-Clean with my comments, questions, proposals
>>> and changes.
>>> If you have any questionS
>>> All the best
>>> Sébastien Bachollet
>>> +33 6 07 66 89 33
>>> Blog: http://sebastien.bachollet.fr/
>>> Mail: Sébastien Bachollet <sebastien at bachollet.com>
>>>
>>>
>>>
>>>
>>> Le 04/09/2015 18:54, « Alan Greenberg » <alan.greenberg at mcgill.ca> a
>>> écrit
>>> :
>>>
>>> >
>>>
>>>
>>>
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>>
> <ALAC-Comment-v07-clean_sbt with further comments by Carlton Sep 5.docx>
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