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Transcript

Transcript CCWG ACCT #22 14 April.doc

Transcript CCWG ACCT #22 14 April.pdf

Recording

The Adobe Connect recording is available here:  https://icann.adobeconnect.com/p4ofdnv6pje/

The audio recording is available here:   http://audio.icann.org/gnso/gnso-ccwg-acct-14apr15-en.mp3

Agenda

1. Welcome, Roll Call & SOI

2. Legal advice presentation & discussion

• Sidley Austin and Adler & Colvin: presentation of legal advice, will include Q&A

3. Stress Test review

• Stress tests  14, 17 and 18

• Test 14  AoC change.

• Test 18  GAC consensus

https://icann-community.icannatlassian.orgnet/wiki/displayspaces/acctcrosscomm/pages/97715670/ST-WP+Draft+Documents

4. CCWG Workplan and timeline

5. AOB

Agenda addition: # of calls and work flow

Notes

These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.

1. Please remember to complete your SoI - reach out to staff if any

assistance is needed.

https://icann-community.icann.orgatlassian.net/wiki/spaces/acctcrosscomm/pages/viewpage.action?pageId=50823968/97715021/Members+Participants

2. We will focus on easiest to explain, understand and implement

Have analyzed mechanisms and powers - California law has powerful tools 9

Under CA law and under contract law there are powerful tools to achieve

the mechanisms the CCWG is seeking.

Clearest path is to org an membership body made up of the same groups as

currently elect directors.

Under a designator model, also ached much of this.  But membership also

gives powers to review and approve certain board decisions.

Under corporate law the community has rights and these are based around

the concept of a corporate purpose.  The purpose is tested in the articles

and further defined in the bylaws.  And the community will have the power

to hold the Broad to that corporate purpose.  Including the word to remove

the board.   Power to amend bylaws.  Also the approval and rejection right

is also powerful (what CCWG has been calling veto rights), and these are

the powers that membership gives over the designator approach

We believe ICANN as a member org is the path to the powers the CCWG seeks.

The duty of care to the organization.  Directors should apply their own

judgment to what is best for the organization.  They are also required to

bring with them knowledge of the community that elected them.

Member structure: 

The SO/AC who elect director would become members.  The directors retain

fiduciary responsibilities, but the community has powers to greater direct

the board. 

Members: primary role to select and remove the board.  Classify the

membership.  Each class would choose internally who it wants to pout on

the Board, these rights are heavily protected. There are some downsides in

that the protect members have a right to sue and can be disruptive.

Suggest in this case that the members be a incorporated entity.  Take the

SO and AC and form as an unincorporated association.  And this is a low

standard give the already exciting organization of the SO/AC.  The current

internal body would become and separate legal entity.

The stature allows for reserve powers, and the powers CCWG seeking can

largely be delivered, so long as the Board's powers overly reduced.

Question about the NomCom role.  Could be a member, or be eliminated and

have its work given to other new

One class of members to vote on another class of members' directed.  This

could be worked around through contracts which would allow the classes of

members to work together.

Members can unilaterally amend bylaws.  The Board can also amend bylaws,

or the right take-away.  Members can veto changes.  Can require actions to

be approved.  Members have the right to sue, if assets were nit used for

the purpose for which the corporation is organized (the corporate purpose)

Member advantage:  key is to amend the bylaws, to approve or veto board

actions and the standing to sue.  However designators still viable.

Notion of a two-tier board structure.  It is not the same as the European

supervisory board.  A larger community board and executive board.  The

community board has oversight over the executive and designates authority

to the executive board.  The large community board has power to interfere

and overrule the executive board.

Need to change the bylaws to classify voting rights.  Procedure to allow

the community to amend the bylaws and adding the community provisions such

as reserve powers and independent review process.  Outside the bylaws

provisions need to provisions to allow removal rights.  Believe can be

done without radically changing the familiar structures of SO/AC

Desired powers.  Based on WP1.  Which work for members and which for

designators.  Both can remove individual directors.  Both can approve or

change the bylaws and protect fundamental bylaws.

To block board actions that conflict with the bylaws and mission:  members

can do this, much harder for the designators.

The powers reserved to the community under a member organized ICANN are

stronger than under designator organized

Block strategic plan or budget, members have the powers, for designators

unlikely or problematic

Principles of contract law.

Community veto power of certain board decisions.  To the extent that it

applies to specific board decisions, the member approach will have more

influence.  Rights can be reserved for members, but not for designators.

Q.  creating legal entities of the SO/AC can this open them up for legal

action.  If the GNSO makes policy recommendations, could it later be sued

for those recommendations.  Concern when he ccNSO was created that joining

a member organization would reduce the ccTLD managers individual rights.

Can we get what we want, without all the restructure.  Can the powers be

given through the powers in the bylaws?

A. The trade off between the member and designator structure is how much

power.  Can have all of the power, except the veto power over certain

board decisions under the designator structure. Are they needed if you

have other strong powers, such as removing the board or control over

bylaws. 

Concept of legal viability.  In the ICANN bylaws provides that groups has

the right to name people to the board.  What is legally viable, the lawyer

answer may be to provide a mechanism to force the board to do what you

want it to do.  Many of the things wanted can be put in the bylaws, but if

the board ignored it, then the question is there anyway to change that.

Q.  1.  is it feasible to have an independent standing panel that would be

bind to the board, i.e. the independent review panel

2. can we call the board to action when they are not taking action

A. under the member model, a lot of flexibility in how to give veto and

approval rights.  Need greater level of research to know.

A. the concept f being able to force the board to do something, under both

there is an option to remove a individual or entire board.  But to force

the board to do something, that's where the members structure is much

stronger.  Forcing the board to do things, by amending the bylaws, or by

the members taking on an action and doing it are possible.

Yes, the NomCom can be constituted as a member, and perform its current

functions.

The only way for one class members to remove the directors appointed by

another class of member would be through some contractual relationship and

removal of the entire board.

SO/AC are created by the ICANN bylaws, and the bylaws controls what they

can and cannot do.  Is this retained as separate bodies?

Current vision for this, the unincorporated association.  Brief articles

of association, would cross reference out of the articles to refer to

existing ICANN documents, no need for governing documents as they already

exist.  So the SO.AC retain their current persona.

The designator model can be made to work.  But the clarity around roles,

is simpler under the member model.  Designator path is considered more

complicated. 

How does a govt representative fit into this structure.

Govt currently has the GAC and the selects non-voting observer to the

board. 

Can a govt representative be considered as a member?   They way seen under

the member or designator structure, did not see the GAC having a voting

members.  NomCom would continue to function and to provide some diversity

etc to the board.

Spring board action in cases of inaction.  A mechanism to cause the board

to take action.  There coercive power exists in the selection and removal

of directors.  

Can formalize the process to call for a meeting of community

representatives and the board to express concerns.  Forcing the board to

act is hard because the are fiduciary and they have to have the right to

take decisions. 

Which can be done under the current arrangements?  Slide 20.  Currently,

it closely represents a designator model.  Desired powers:  SO/AC if

considered designators will have approval rights over certain articles or

bylaws, and can recall the whole board, cannot block board action such as

the adoption of budget or strategic plan.

1. Note: TLG no longer appoints to ICANN board

2.  Nuance. Bylaws can be put in place that allows the community, using

whatever mechanisms it wishes, to veto the budget, strategic plan, etc.

The Board could ignore that veto and if they did, the next power could be

to remove the board.

3.  Problems with membership based organization and current structure of

the NomCom and particularly GAC advice and how it is treated under the

bylaws.

Need to also address WP2 issues, and reviewing the IRP and how this can

fit in the recommendations will be the subject of legal sub-team call

(Wednesday, 15 April. 15:00-17:00 UTC)

Yes we can have all the options, but some trade-off for a solution that

might be easier to implement.  The requirements were not unrealistic.

3. CCWG Workplan and timeline

Not wishing to loose momentum, but recognizing the concerns about the high

workload and heavy document load.  The report, the first administrative

parts of the report document is largely complete.   See solid progress

from WP1 and WP2.  And feel the group has achieved a great deal. To pull

the parts together to a cohesive document

Eberhard Lisse:  disagree with the approach being taken, we need more time

to discuss.

Short term work time.  Our charter in the context of the transition, and

deliver in a time frame consistent with the CWG as we are supporting some

of their proposals.  We expect it hear more from CWG on their requirements

after their 2 day intense work session of Monday/Tuesday this week. And we

need our proposal to be available for ICANN #53 and consideration by the

SO/AC,  Our Istanbul target was for public comment launch on April 21. We

want members to be able to comment on the proposals. We need assurance on

legal feasibility, and we have good progress and issues for legal group to

investigate

Way forward.  1.  focus, and suggestions on list we might do that on the

CWG needs, as they respond after their intense work days.

Adjust our approach: 3 step approach:  1. this week focus on WP so they

complete proposals by the end of the week.  2. To turn around a 20-25 page

draft report over the weekend and 3 day freeze Monday-Wednesday so the

group can consider.  3. a 2 day intense work period based on the CWG

model, Thursday/ Friday next week

Revised call schedule.  Cancel the CCWG calls of Thursday Apr 16, Friday

Apr 17 (set Friday as target for the draft report to be circulated) and

cancel the additional meetings of Monday Apr 20 and Tuesday 21st.  Keep

the regular Tuesday Apr 21 CCWG 19:00 UTC. Consider CWG comments and

follow-up on legal advice).  Intensive April 23/24 work period as inspired

by the CWG process of meetings. And finalize the proposals - we are

extending the time line.

Cover the CWG requirements as a priority.

No face-to-face May meeting, but June 19 in Buenos Aires.

Request the spread the meeting times for the intense meetings across the

timezones (Agreed, will be amended)

Outcome of WP1. Aware WP1 may present options, and public comment can be

used to provide feedback on issues.  Legal advice affecting WP2

recommendations. 

Agreement to cancel the schedule and introduce the new meeting times

(revised for timezones)

Discussion of stress test 18 to next meeting.

Summary report, and plan for intense work days next week.

END

Action Items

Documents Presented

Chat Transcript

  Brenda Brewer: (4/14/2015 05:07) Welcome to the CCWG ACCT Meeting #22 on 14 April.

  Brenda Brewer: (05:07) Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior:

  Brenda Brewer: (05:08) http://www.icann.org/en/news/in-focus/accountability/expected-standards 

  Holly Gregory (Sidley): (06:54) Good morning, afternoon,evening all!

  Alice Munyua (GAC): (06:54) Hello everyone

  Jordan Carter (.nz, member): (06:55) morning all

  Leon Sanchez (Co-Chair, ALAC): (06:56) Hello everyone

  Olga Cavalli - GAC Argentina: (06:56) Hello all!

  Edward Morris: (06:57) HI Olga!

  Jordan Carter (.nz, member): (06:58) Someone is hissing

  Rosemary Fei: (06:58) Good morning everyone

  arasteh 3: (06:59) hi everybody

  arasteh 3: (06:59) Hi Jordan

  Michael Clark (Sidley Austin LLP): (06:59) Hello all

  Suzanne Radell (GAC): (06:59) Hello everyone

  arasteh 3: (06:59) I HOPE YOU DO NOT COM,MENT ON MY HELLO

  Pedro Ivo Silva [GAC Brasil]: (06:59) Hello everyone!

  Cheryl Langdon-Orr: (06:59) Hi there

  Josh Hofheimer (Sidley): (07:00) Good morning.  I am online but waiting to be admitted to the line

  Pär Brumark (GAC Niue): (07:00) Hi!

  Mathieu Weill, ccNSO, co-chair: (07:00) Hello everyone

  Chris Disspain: (07:00) Hi All

  Chris Disspain: (07:00) just on hold waiting to join

  arasteh 3: (07:00) CCWG cO cHAIR

  Josh Hofheimer (Sidley): (07:00) I am now on the audio as well

  arasteh 3: (07:01) I HAVE A POINT TO ADD TO THE AGENDA

  Rosemary Fei: (07:02) Is the SOI something the legal counsel need to do?

  arasteh 3: (07:02) I was connec ted few seconds ago but disconnected now

  arasteh 3: (07:02) Could someone advise the operator to dial me again

  arasteh 3: (07:03) i have a point to add to agenda

  Steve DelBianco  [GNSO - CSG]: (07:03) Leon's voice cuts out every 5 seconds

  Mathieu Weill, ccNSO, co-chair: (07:03) It's ok for me here

  Chris Disspain: (07:03) not for me Steve

  Steve DelBianco  [GNSO - CSG]: (07:03) thanks.   Will re-dial.

  Cheryl Langdon-Orr - ALAC  APRegional Member: (07:04) fine fr me too @Steve using phine not AC audio?

  arasteh 3: (07:04) CH cHAIR

  arasteh 3: (07:04) PLS KINDLY ALLOW ME TO ADD A POINT TO THE AGENDA

  Cheryl Langdon-Orr - ALAC  APRegional Member: (07:05) AOB  is lsted as Agenda Item 5   would such a new matter not fit there??

  Brenda Brewer: (07:05) yes

  Paul Twomey: (07:05) Hi everyone

  Robin Gross [GNSO - NCSG]: (07:06) Happy 5am!  :-)

  Cheryl Langdon-Orr - ALAC  APRegional Member: (07:07) no empathy rom me on that Robyn  most ICANN calls are 0100, 0300 or 0500 here  this is a respectable 2200 ;-)

  Robin Gross [GNSO - NCSG]: (07:08) lucky you

  Jonathan Zuck (IPC): (07:13) which is better anyway

  Mathieu Weill, ccNSO, co-chair: (07:15) Please note that Alice circulated the slides on the list. Thanks Alice !

  Sabine Meyer (GAC Germany): (07:16) and now they arriived! thanks.

  Alice Munyua (GAC): (07:17) Thank you. Alice

  Steve DelBianco  [GNSO - CSG]: (07:17) Q: how to balance when best interests of the Corporation clash with the purposes in the articles and bylaws?

  Mathieu Weill, ccNSO, co-chair: (07:17) @Steve : I think the slide said : judgement call. But a godd Q

  James Bladel - GNSO: (07:17) Any way to zoom this a bit?

  Mathieu Weill, ccNSO, co-chair: (07:18) The slides are also in your mailbox

  James Bladel - GNSO: (07:18) No, er rather not yet. :)

  Avri Doria: (07:18) James you can also make the screen full screen.

  Mathieu Weill, ccNSO, co-chair: (07:18) @James ok sorry

  Samantha Eisner 2: (07:18) The slide is slightly out of date - The TLG no longer has a liaison to the ICANN Board

  Robin Gross [GNSO - NCSG]: (07:19) I thought we were to get a run through of two solutions today, for us to decide on.

  James Bladel - GNSO: (07:19) Avri:  You mean buy a bigger iPad?  :)

  Mathieu Weill, ccNSO, co-chair: (07:19) try another iPad James I suppose

  Leon Sanchez (Co-Chair, ALAC): (07:19) @Robin we will get there

  James Bladel - GNSO: (07:19) @Mattieu & Alice - just got 'em.  Thanks!

  Robin Gross [GNSO - NCSG]: (07:20) thanks, Leon

  Eberhard Lisse [.NA ccTLD Manager]: (07:20) Just for the record, I can't see these slides in my in tray. When were they sent out to us?

  Robin Gross [GNSO - NCSG]: (07:20) just this moment, Eberhard.

  Mathieu Weill, ccNSO, co-chair: (07:20) @Robin: to be clear. We are not going to make a decision today on these solutions.

  Stephanie Petit: (07:20) Robin, both solutions will be discussed today.  We received some clear instruction at a legal subteam meeting yesterday to present which we thought better fit the criteria.

  Avri Doria: (07:20) James i mean tthe little full screen buttin in the section of the page.  but i did not realize you were using a toy.  sorry.

  Robin Gross [GNSO - NCSG]: (07:20) I know, Mathieu. 

  Mathieu Weill, ccNSO, co-chair: (07:21) ok Robin, did not want any confusion on that important aspect

  Eberhard Lisse [.NA ccTLD Manager]: (07:21) Thank you Robin

  Paul Twomey: (07:23) Q:  Does this membership model place any barriers on future reviews of any SO or AC recommending that there be reform of the SO ad AC and its present rrepresentation being divided among any new body(ies)?   This has happened a few times in ICANN's hisotry and could forseeable in the next decades?

  Avri Doria: (07:25) Could the nocmomc appoint members?

  Avri Doria: (07:25) so the nomcom could not appoint?

  Avri Doria: (07:26) oh, but they could not be easily removed once appointed.

  Avri Doria: (07:26) seems sort of a fatal flaw. i do not think removing the nomcom is part of our scope.

  Samantha Eisner 2: (07:26) Q: If only the appointing entities are members, what rights do the ACs that are not members when it comes to the exercise of community powers?

  Edward Morris: (07:27) Can we pleasae get scrolling enabled?

  Holly Gregory (Sidley): (07:27) Avri, nom com not needed to be removed,  could continue much like now

  Avri Doria: (07:27) Ed, they sent a copy of slides to your mailbox

  Josh Hofheimer (Sidley): (07:27) @Avri, the NominatingCommittee could still exist.  It would not be a member, and some of its seats could be allocated to other members, but it could still be empowered to designate a group of directors.

  Alice Jansen: (07:28) Slides can also be found here - https://icann-community.icannatlassian.orgnet/wiki/download/attachments/5289008297715875/ICANN%20CCWG%20-%20Presentation%20Slides.pdf?version=1&modificationDate=1429014409905&api=v2

  Josh Hofheimer (Sidley): (07:28) @Sam, we don't see the non-member AC rights changing.  But they would not have the same statutory powers as are affforded to members

  Holly Gregory (Sidley): (07:28) Or Nov Com could potentially be a member but note that there is currently some overlap to consider.  this is a detail to work out.  (And there are many details to work out.  This is still a high level conceptual discussion.)

  Avri Doria: (07:29) Holly & Josh, I guess iam confused about this.  will ask during question period.

  Avri Doria: (07:29) are there non-member directors?

  Robin Gross [GNSO - NCSG]: (07:30) why are GAC and ALAC in different ameobas?  They are both ACs.

  Holly Gregory (Sidley): (07:30) As I said, Avri, this is a detail that needs to be worked out..  But there is room to work it out as the community determiones best.

  Samantha Eisner 2: (07:30) Q: Josh, does that mean that the non-member groups would not have the same powers as the members?

  Brenden Kuerbis: (07:30) Good quesiton Robin

  Avri Doria: (07:30) GAC dors not hava a voting director at this point, ALAC does.

  Pedro Ivo Silva [GAC Brasil]: (07:30) Would it be correct to assume that the primary governance goal is to select/remove board directors? What about the other powers? My personal view is that they are also primary  accountability objectives...

  Holly Gregory (Sidley): (07:30) Roben, that is how it appears on ICANN website

  Greg Shatan: (07:31) Couldn't the NomCom continue as a committee?  It exists only to find members for various ICANN positions.

  Jordan Carter (.nz, member): (07:31) Pedro, I agree they are. I am confident we'll get to this.

  Robin Gross [GNSO - NCSG]: (07:31) that sounds right to me, Greg.

  Leon Sanchez (Co-Chair, ALAC): (07:31) @Robin I would think they were punt in different amoebas because of the voting nature of their Board members?

  Josh Hofheimer (Sidley): (07:31) @Robin, the distinction is between which AC's can select voting members of the Board.  Our slides r mirrored what we had pulled from tsome ICANN materials, but we understand they may be slightly dated.

  Stephanie Petit: (07:32) @ Greg, I think the NomCom could continue as a committee, the question is whether it nominates members for someone else to elect/appoint, or whether it itself selects.

  Holly Gregory (Sidley): (07:32) Pedro, appointing and removing directors is a very powerful tool, but as Rosemary is discussing and is set out on slide 16 the other powers are also available.vo

  Josh Hofheimer (Sidley): (07:32) Correct @Sam

  Avri Doria: (07:32) We would havea a member's committee as well as the BoD?

  Robin Gross [GNSO - NCSG]: (07:32) does this two-tier board work in accordance with a Designator model?

  Greg Shatan: (07:33) The Board Members appointed by the NomCom do not have the same relationship to the NomCom, as other Board Members do to the  organizations that elected them.

  Holly Gregory (Sidley): (07:33) yes Robin, but we do not favor it

  Holly Gregory (Sidley): (07:34) Avri yes under the 3rd path -- which we do not recommend

  Robin Gross [GNSO - NCSG]: (07:35) what is the main argument against this 2-tier board?

  Holly Gregory (Sidley): (07:35) Fiduciary duties mean community board members could be sued --

  Greg: (07:35) Greg Colvin here.  At present the"Nominating" Committee is a misnomer, because it really ELECTS directors by use of delegates that represent a certain configuration of constituents.

  Samantha Eisner 2: (07:37) Q: So each of the groups would be required to be recognized under CA law in order to be able to be members?

  Cheryl Langdon-Orr - ALAC  APRegional Member: (07:37) As I understand it @Sam

  Josh Hofheimer (Sidley): (07:38) @Sam, yes.  THe same is true if they are acting as "designators" not members.  They still need to be loegal persons.

  Josh Hofheimer (Sidley): (07:38) legal persons

  Holly Gregory (Sidley): (07:38) Robin, in addition we think it would add considerable expense  and tensions into the governance structure. by allowing all decisions of the smaller board to be overturned by the bigger board  -- and then the issue of how to hold the bigger board accountable to the community would remain.  A key point is that members in a membership body are not fiduciaries and can be entities while directors are fiduciaries and must be natural persons (individual humans not entities)

  Jordan Carter (.nz, member): (07:38) Josh, how can that be true given the existing HomCom?

  Chris Disspain: (07:38) Holly, once a leagl person can they be sued?

  Jordan Carter (.nz, member): (07:38) *NomCom

  Robin Gross [GNSO - NCSG]: (07:39) Holly, could this be structured so that decisions are only made by the larger board on the narrow set of powers?

  Holly Gregory (Sidley): (07:39) Directors of the bigger boad would be fiduciaries who could be sued for breach of duties.  Mebers of a membership body cannot be sued for breach of duties because they are not fiduciaries and do not owe duties.

  Chris Disspain: (07:40) can the unicorp assoc be sued?

  Stephanie Petit: (07:40) @Jordan, there is an argument under the current California law that designators need nto be legal persons, but the legal team agrees that the better argument is that designators should be legal persons.

  Robin Gross [GNSO - NCSG]: (07:40) didn't the memos say unincorp assoc won't be recognized in other jurisdictions and the individuals within could be sued?

  Robin Gross [GNSO - NCSG]: (07:41) can desisnators powers be increased beyond only appointing board members?  in the bylaws?  via contract?

  Eberhard Lisse [.NA ccTLD Manager]: (07:41) In the US anyone can sue anyone anywy.

  Sharon Flanagan (Sidley): (07:42) @Chris - yes, unincorp. assoc could be sued, but there are limits on the liability of members

  Samantha Eisner 2: (07:42) Was analysis done on how to achieve some of these items through inclusion of specific Bylaws or Articles provisions?  For example, the ability to block a board decision seems to have many layers before you'd get to the need to sue the Board

  Holly Gregory (Sidley): (07:42) If unicorporated association is a member of the membership body , we think the likelihood that it could be sued is very low, since as a member it owes no duties to the organization.  The devil is in the details.  If the members have so many powers reserved to them that the members are in fact managing the corporation rather than the board, a court could find that the member body had become a defacto board with fiduciary duties.  That is one reason to be carful not to usurp the board's role in managing and directing ICANN's affairs.

  Jordan Carter (.nz, member): (07:43) Holly, presumably you'd advise us if you thought we were doing that

  Holly Gregory (Sidley): (07:43) apologies for all my typos

  Jordan Carter (.nz, member): (07:43) and the absece of such advice can be assumed to mean we aren't.

  Chris Disspain: (07:43) Holly understood but not what I'm getting at -will deal with it when I ask my w=quaetions'

  Jordan Carter (.nz, member): (07:43) (those two comments in response to your last sentence)

  Robin Gross [GNSO - NCSG]: (07:44) but can we CREATE those powers?  via bylaws?  via contract?

  Jordan Carter (.nz, member): (07:44) Chris: all ICANN participants today are persons who can be sued, aren't they.we?

  Holly Gregory (Sidley): (07:44) absolutely, Jordan.  We are here to help you think through the implications both positive and negative of the mechjanisms and powers you are considering , and if needed to help work on implementation. 

  Sharon Flanagan (Sidley): (07:45) @ Jordan - agree.  The issue is already there

  Samantha Eisner 2: (07:45) Q: Who is contracting with whom in these accountability contracts?

  Chris Disspain: (07:45) Jordan..yes but not what I'm getting at

  Chris Disspain: (07:45) will explain

  Stephanie Petit: (07:45) @Robin, given the statutory framework in California, it is a bit difficult to enlarge desigantor powers beyond director election/recall  and power to approve governing document amendment.  There is more ability to do this for members.

  Robin Gross [GNSO - NCSG]: (07:46) why can't these powers be enlarged via bylaws?  even by still giving the board the final vote?

  Julia Wolman, Denmark, GAC: (07:47) An important question with regard to the organisation is to analyse how the GAC and governments would fit into the new set up

  Alice Jansen: (07:47) Scrolling has been enabled for Q&A

  Cheryl Langdon-Orr - ALAC  APRegional Member: (07:47) Thx @Alice

  Olga Cavalli - GAC Argentina: (07:48) @Julia goof point

  Olga Cavalli - GAC Argentina: (07:48) good

  Robin Gross [GNSO - NCSG]: (07:49) why can't the bylaws create a right to reconsider certain board decisions?  The board still gets the final vote, but is asked to reconsider.  We haven't had ANY analysis on this proposition yet.

  David McAuley: (07:50) Holly, when the team talks of using contracts in conjunction with corp. law what does such a contract look like? Who are parties with standing to sue for breach? What is term (indefinite?)? Is it terminable at will? Are third party beneficiaries involved?

  Stephanie Petit: (07:50) @Robin, I see. I think we could provide a recommendation mechanism and process in the bylaws.  Board of course would have to have final say.   

  Robin Gross [GNSO - NCSG]: (07:50) Stephanie, that is the option we have been considering and expecting to be evaluated.

  Robin Gross [GNSO - NCSG]: (07:51) so it is frustrating to the slides say "no" when the answer is "yes"

  Samantha Eisner 2: (07:51) Q: 1.  Wouldn't the designator structure have many of the powers of members by virtue of their ability to remove directors?  If the board takes action in conflict with the bylaws, then they could be removed.  Or event a veto power Isn't this an effective tool?

  Holly Gregory (Sidley): (07:52) David, the contyract would be among the members.  Just like a shareholders agreement

  Josh Hofheimer (Sidley): (07:52) @RObin, we have analyzed your last two questions, and the conslusion is that only the member organization gives the members a right to reject board decisions. 

  Rosemary Fei: (07:52) Contract might involve the individual directors

  Rosemary Fei: (07:52) And might involve ICANN as a party

  Robin Gross [GNSO - NCSG]: (07:52) that isn't the proposition.  the proposition is a RECONSIDERATION process of a board decison. the board does have the final say.  please try to understand what is being considered.

  Jordan Carter (.nz, member): (07:53) Robin, is that really true if we are saying it's possible to say no more than once?

  Leon Sanchez (Co-Chair, ALAC): (07:53) The queue is long and we have very little time. May I ask you to keep your questions as short and focused as possible?

  Josh Hofheimer (Sidley): (07:53) @Robin A request for reconsideration could be written into the bylaws for certain groups, but none of those "requet for reconsiderations" would have binding effect.  SO the issue is whether you want the community to be able to bind the board, through reservation of powers

  Jordan Carter (.nz, member): (07:53) endlessly, in essence? Is that a reconsideration or a rejection?

  Leon Sanchez (Co-Chair, ALAC): (07:53) I will be closing the queue with Rosemary Fei now

  Samantha Eisner 2: (07:53) @Rosemary, so the contract would be between directors and ICANN?  Would the members hold contracts?

  Stephanie Petit: (07:54) Josh and Robin,  I think we could have a reconsideration process. Whether it is enforceable is another question.

  Robin Gross [GNSO - NCSG]: (07:54) Josh, could this reconsideration then trigger the need for a higher voting threshold by the board?

  Robin Gross [GNSO - NCSG]: (07:54) via the bylaws

  Pedro Ivo Silva [GAC Brasil]: (07:54) Exactly, Julia. On a more general level: Why does the proposed member structure simply mirrors the structure of the actual Board? Why does it assume that the communities with non-voting board members would also have non-voting seats in the member structure?

  Leon Sanchez (Co-Chair, ALAC): (07:54) @Stephanie but then if it's not enforceable it would defeat the purpose I think

  Robin Gross [GNSO - NCSG]: (07:54) we could enforce it with out recall mechanism?  it beats a lawsuit as the only means of enforcement as with membership model

  Robin Gross [GNSO - NCSG]: (07:55) sorry for the typos, folks!  ;

  Brenden Kuerbis: (07:55) @Chris E.g., over IANA related decisons

  Paul Rosenzweig: (07:55) Respectful disagreement Chris -- this is our one chance to reconfigure ICANN to our liking.  Even if the dislocation is larger than expected if the new structure is what we want, we should do it.

  Josh Hofheimer (Sidley): (07:55) @Chris, take a look at slide 16 for the table comparing member powers vs designator powers

  Jonathan Zuck (IPC): (07:56) exactly

  Greg Shatan: (07:57) Mutual suspension of disbelief only works when everyone is in agreement, not when there problems.

  Stephanie Petit: (07:57) @Leon, I think that's why teh chart said no to designator reconsideration of Board action.  Rosemary addressing this now verbally.

  Jordan Carter (.nz, member): (07:57) In the absence of the big stick of the NTIA, we need the new accountability settleement to have all the teeth it can have.

  Jordan Carter (.nz, member): (07:57) ESPECIALLY if ICANN is the steward

  Robin Gross [GNSO - NCSG]: (07:57) I hope the slide will be corrected to reflect that this empowered designator model is possible.  right now it just says "no"

  Eberhard Lisse [.NA ccTLD Manager]: (07:59) can corporations marry (in the US)?

  James Bladel - GNSO: (07:59) How are we not suable currently?  Or would they sue ICANN for the actions of an SO/AC?

  Jordan Carter (.nz, member): (07:59) James: yes, I think ICANN the entity is the legal shield these days

  Jordan Carter (.nz, member): (08:00) They would still sue ICANN because ICANN has all the $$$$

  Stephanie Petit: (08:00) @Robin, legal team should confer to ensure we are all on the same page.  I think the chart is meant to reflect what is legally enforceable.

  Josh Hofheimer (Sidley): (08:01) @Robin, we have not said no to the designator model, but the co-chairs asked for recommendation of 1 model.  We have recommended the member model, but that does not preclude designator model.  There are trade-offs to both.

  Greg Shatan: (08:01) Currently, one could probably sue the individual SO/AC leaders and possibly the individual members, if there was a cause of action against an SO/AC's actions.   Whether that would survive all the way through a court case is another matter.

  David McAuley: (08:01) IRP question is important, thanks Mathieu

  Chris Disspain: (08:01) Just to be clear, I'm not against this but I am trying to anticipate questipns from our community

  Jordan Carter (.nz, member): (08:02) Chris: I think they are good questions to be asking

  Jordan Carter (.nz, member): (08:02) There is clearly a "spectrum" of bullet-proof-ness for some of these remedies

  Andrew R Harris: (08:02) m

  Mathieu Weill, ccNSO, co-chair: (08:03) My Q was about a panel where people outside of members would have standing

  Olga Cavalli - GAC Argentina: (08:03) soory my adobe was not workign and I lost my hand up

  Olga Cavalli - GAC Argentina: (08:04) :(

  Samantha Eisner 2: (08:04) With the introduction of membership, how would we then address accountabiility mechanisms related to the exercise of membership power, particularly where the members don't hold a fiduciary interest and are acting in their personal interest?  This seems to be an issue for discussion among the CCWG.

  Josh Hofheimer (Sidley): (08:04) @Jordan re your previous question regarding the Nom Comm.  It functions like a "designator" today, but may not be fully organized as one.  However, any of the organizations selecting voting members of the board -- be they member or designators -- need to be organized as legal persons; so regardless the outcome of this debate there should be some clean-up

  Robin Gross [GNSO - NCSG]: (08:04) the only two powers we want that aren't automatically available are approve budget and strat plan.  But it sounds like bylaws and / or contract mechanisms can be created to obtain those rights under a designator model.

  Chris Disspain: (08:04) Yes Robin

  Josh Hofheimer (Sidley): (08:05) @Robin, no.  Approving the budget and strategic plan is not a power that is reserved to designators.

  Rosemary Fei: (08:05) Could someone change to slide 11

  Robin Gross [GNSO - NCSG]: (08:05) that is what I just said, Josh.  ;-)

  Stephanie Petit: (08:06) @Robin, no.  Designators cannot have enforceable approval over those two rights.  Members can.  Designators could have non-enforceable advisory powers over those.  They could of course  remove Board members..

  Stephanie Petit: (08:06) Not even by contract or in bylaws.

  Josh Hofheimer (Sidley): (08:06) +1 Stephanie

  Robin Gross [GNSO - NCSG]: (08:06) Designators could force a reconsideration process.  That needs to be explored further.

  Stephanie Petit: (08:06) Again, we're not clear that that would be enforceable.  We could provide for it and it may work well for you.

  Chris Disspain: (08:06) Stephanie - when you say they can't have the power I think what you mean is that they can't enforece it and would then have to rely on the Board spill power to get it done...correct?

  Stephanie Petit: (08:07) Yes, chris, thanks!

  Robin Gross [GNSO - NCSG]: (08:07) yes, chris, it is frustrating that this seems to be so misleading.

  Holly Gregory (Sidley): (08:07) +1 Chris

  Josh Hofheimer (Sidley): (08:07) @Robin, agreed, but the reconsideration process could not force a Board action.  THe Board could simply say no.

  Mathieu Weill, ccNSO, co-chair: (08:07) Important points. Will be up to us to decide whether we think this is enough assurance of enforceability

  Greg Shatan: (08:07) NomCom's relationship to "it's" directors is different than the other members

  Robin Gross [GNSO - NCSG]: (08:07) but it could STOP a board action.

  Robin Gross [GNSO - NCSG]: (08:08) focus only on that

  Chris Disspain: (08:08) So all of this is necessary ti enable the veto power to be effective in the first instance...right?

  Greg Shatan: (08:08) They do not in  any way represent the NomCom

  Josh Hofheimer (Sidley): (08:08) @Robin, that's what we are trying to explain.  The designator cannot stop the Board action in the scenario you describe.

  Jordan Carter (.nz, member): (08:09) If we are talking about the context of an heroic and unlikely attempt to break the link to a sovereign state, I don't think "it might work" enforceability of these powers is going to fly.

  Chris Disspain: (08:09) in other words the Board could ignore the veto BUT the bord could NT ignore the spill

  Greg Shatan: (08:09) The NomCom is in fact drawn from other ICANN SO/ACs etc.

  Seun Ojedeji: (08:09) The feature "Members can unilaterally amend bylaws" seem to be of great concern in the members option

  Cheryl Langdon-Orr: (08:09) remember also that the NomCom also aims to appoint 'independant Directors  not Directors from constituencies

  Holly Gregory (Sidley): (08:09) Not really Robin.  It could not stop a board action.  It could remove threaten to remove the board which may cause the board to change direction and ultimately it could remove the board and the new board would be free to take different action

  Robin Gross [GNSO - NCSG]: (08:09) why can't there be a bylaws forced reconsideration process that makes no actions until the board votes again with a higher threshold?

  Eberhard Lisse [.NA ccTLD Manager]: (08:09) Why are we interrupting each other?

  Jordan Carter (.nz, member): (08:09) Robin: at the high level this is about who is in control

  Chris Disspain: (08:09) because we can

  Avri Doria: (08:09) since the presentation is over may be good to unsynch the slides

  Jordan Carter (.nz, member): (08:09) with a designator structure the answer is, the board.

  Greg Shatan: (08:10) @Seun:  The power to change bylaws is a power of all members through a vote, not a power of each member

  Jordan Carter (.nz, member): (08:10) with amembership structure the answer is, the members

  Greg Shatan: (08:10) @Avri, slides are unsynced

  Greg: (08:10) Colvin here.  In current ICANN bylaws, the IRP is not a board structure, or a membership, or a designator body, but something uniquely constituted, sort of a judicial tribunal.  We as lawyers haven't studied that yet.

  Robin Gross [GNSO - NCSG]: (08:10) How do members enforce their rights besides a lawsuit against ICANN?

  Avri Doria: (08:10) We would need a nomcom recall mechanism

  Avri Doria: (08:11) if the nomcom becomes a member it will need its own recall process.

  Cheryl Langdon-Orr: (08:11) I agree @avri

  Chris Disspain: (08:11) Let me try this again - taking the budget veto as an example - without being memebers we could veto the budget but the Board coud ignore that veto BUT if they did we could institute a spill mechanism and that tey cannot ignore

  Mathieu Weill, ccNSO, co-chair: (08:11) Q: is there no option for "Independent Directors"

  Samantha Eisner 2: (08:11) Q: Would members be allowed to enter into enforceable voting agreements amongst themselves?

  Stephanie Petit: (08:11) Chris, yes!

  Holly Gregory (Sidley): (08:11) Robin, we could build an arbitration process for intra-company disputes

  Robin Gross [GNSO - NCSG]: (08:12) yes, Chris we could. but we can't get clear answers on this for some odd reason.

  Jordan Carter (.nz, member): (08:12) Robin, that's not fair. "Yes" is a pretty clear answer.

  Robin Gross [GNSO - NCSG]: (08:12) Holly, couldn't that be done under a designator model also to enforce rights?

  Chris Disspain: (08:12) thanks Stehanie...for us then the decision about whether to go through a whole restrucutre is whether we believe tat an ebforebale veto is necessary if we have the ultimate threat

  Paul Twomey: (08:12) Very good question

  Seun Ojedeji: (08:12) Yeah @Greg so if i get this correctly, all members without taking into consideration views of the ICANN board can change the ICANN bylaws (and that is the unilateral aspect i was referring). Its like switching current status-quo where ICANN board can unilaterraly change bylaw....i would prefer a middle point and then an over-rule is board  proves difficult

  Holly Gregory (Sidley): (08:13) yes -- to enforce rights that are enforceable -- but not to enforce things that the law would not allow designators to do

  Jordan Carter (.nz, member): (08:13) Bylaws changes could be constrained so they need Board and Membership approval, right, lawyers?

  Stephanie Petit: (08:13) @Jordan, yes.

  Jordan Carter (.nz, member): (08:13) Ditto Board and Designators approval?

  Holly Gregory (Sidley): (08:13) Absolutely yes, Jordan

  Robin Gross [GNSO - NCSG]: (08:13) but if the bylaws created the right, they would be rights.

  Robin Gross [GNSO - NCSG]: (08:14) and enforced through an IRP

  Josh Hofheimer (Sidley): (08:14) @ Robin, No.  Designators do not have standing to sue. 

  Jordan Carter (.nz, member): (08:14) the lawyers have already said that they have not looked at the IRP framework, Robin.

  Eberhard Lisse [.NA ccTLD Manager]: (08:14) ANYONE can sue

  Robin Gross [GNSO - NCSG]: (08:14) I'm not talking about suing, Josh, under a designator model.

  Chris Disspain: (08:14) Robin I think the key is that with members you don't need to escalate up to the Board spill nuclear option to get wat you want lower down

  Holly Gregory (Sidley): (08:14) Jordan, my absolutely yes was re members.    We believe designators may also be given ability to apporve certain bylaws .

  Seun Ojedeji: (08:14) @Jordan, thanks for the question and @Lawyer thanks for the response and just to be clear, does that apply to the member mechanism option?

  Chris Disspain: (08:15) speaking personally I'm fine with relying on the threat of a spill to get what we want

  Jordan Carter (.nz, member): (08:15) oud and clear :-)

  Jordan Carter (.nz, member): (08:15) +l

  Cheryl Langdon-Orr: (08:15) agree with you @chris

  Holly Gregory (Sidley): (08:15) Robin, veto and reconsideration are two different things.  that is the point

  Paul Twomey: (08:15) But I think i just heard that the new entities could sue so I suspect Commmunity driven process for review and reform of SOs coulbe more difficult

  Eberhard Lisse [.NA ccTLD Manager]: (08:16) The point about associating/incorporating is putting a corporate veil over individuals so they can't be sued in their personal capacities

  Rosemary Fei: (08:16) @sam, voting agreements are not permitted, but we think we can draft contracts that would not be voting agreements to achieve the goals

  Jordan Carter (.nz, member): (08:16) I'd like to see what the community thinks of "This all comes back to spilling the ICANN Board" since some community members have said this would be a most serious thing

  Jordan Carter (.nz, member): (08:17) and the question I suppose is "sure, you can get that iron-clad right to do those other things - but this is what you have to do to get it"

  Chris Disspain: (08:17) absolutely Jordan

  Eberhard Lisse [.NA ccTLD Manager]: (08:17) I am REALLY starting to become annoyed, can we PLEASE not interrupt each other!!!

  Rosemary Fei: (08:18) @paul, any restructuring of who are the member classes would require every member class to agree.  So yes, that could be difficult

  Jordan Carter (.nz, member): (08:18) Chris: it was you in Istanbul who said spilling the ICANN Board would be the official Worst Thing Ever :-)

  Chris Disspain: (08:18) For me the very idea of restrucutring ICANN is problematic...but I accept that that is just me

  Chris Disspain: (08:18) I did

  Chris Disspain: (08:18) and I still think that

  Jordan Carter (.nz, member): (08:18) I thought we all had agreed a doctrine of simplicity Chris - none of us should want to restructure unless we have to

  Chris Disspain: (08:18) both as me and as a Board member ;-)

  Jordan Carter (.nz, member): (08:18) so I doubt you're the only person who thinks that

  Jordan Carter (.nz, member): (08:19) (that restructuring ICANN is problematic)

  Chris Disspain: (08:19) once again Jordan...to the amazement of other...we agree ;_)

  Rosemary Fei: (08:19) +1 Eberhard

  Jordan Carter (.nz, member): (08:19) The thing is, we have to remake the corporation fit for its new environment, and I don't see necessarily that we can do that without substantial reforms

  Jordan Carter (.nz, member): (08:19) and the new environment, without the NTIA contract, is VERY different.

  Jordan Carter (.nz, member): (08:20) Quick, let's disagree again

  Chris Disspain: (08:20) @ Jordan...so now we revert to type and diverge :-)

  Alan Greenberg (ALAC): (08:20) Why do we need two levels of Board in the Member model?

  Jordan Carter (.nz, member): (08:20) Alan: we don't.

  Greg: (08:20) Colvin here.  Maybe bylaws could include a compulsory arbitration mechanism WITHIN ICANN like an IRP, before going to court.

  David McAuley: (08:20) Thanks Holly - we will need to look clearly at IRP at some point soon in order to know exactly how that might work among these powers to get the board to go along (in certain cases where community agrees) with IRP decision

  Greg Shatan: (08:22) A court will not recognize an entity merely because two entities agree they can go to court.

  Chris Disspain: (08:23) why isn't the 'meaning' we give that we can spill the Board?

  Alan Greenberg (ALAC): (08:23) @Jordon. So it is shown on the Member model just to allow Members to select MORE Board members and then have this subset correcponding to current Board??

  David McAuley: (08:23) If membership model gives better rights, and designator model needs what looks like extensive contract tinkering to maybe get near that level of rights, why use designator model? There may be a reason but need more to see it.

  Alan Greenberg (ALAC): (08:23) Oops - JordAn

  Samantha Eisner 2: (08:23) When we talk about the community exercise of "veto" rights, it sounds as if the advice that we've received may be about designator or member power to challenge those decisions - not the broader ICANN community (including those groups that were not identified as members/designators).  Do I understand that correctly?

  Paul Rosenzweig: (08:24) @Robin -- What is your reason to prefer the designator model -- in other words, why are you struggling?

  Olga Cavalli - GAC Argentina: (08:25) Hi I have problems with my adobe connect and I get disconnected all the time and go to the end of the qwue

  Jordan Carter (.nz, member): (08:26) But we have said clearly it isn't a single turn back in the reconsideration of e.g. a budget

  Jordan Carter (.nz, member): (08:26) and that's getting clearer in our content for the comment period

  David McAuley: (08:27) +1 Leon

  David McAuley: (08:27) a lot there for us on legal sub-tean to consider

  Josh Hofheimer (Sidley): (08:27) Agreed David!

  Jordan Carter (.nz, member): (08:29) Can we stop using "the diagram we are currently looking at" without a reference to the slide number please? Otherwise it is easy to get lost.

  Josh Hofheimer (Sidley): (08:30) @Jordan, slide 8

  Avri Doria: (08:30) GAC would also still have its ByLaws special status vis a vis the Board.

  Samantha Eisner 2: (08:30) In follow up to Olga's question, as contemplated under the membership model proposed, teh GAC would not have a membership seat and would not be included in the exercise of membership powers, is that right?

  Avri Doria: (08:31) And couldn't if become a an Association itself and be a member?

  Rosemary Fei: (08:31) That's not a legal issue, it's a political issue.  Yes, legally, the governments could be given a membersh position

  Alice Munyua (GAC): (08:31) I think the GAC should have this discussion regarding how it fits in the proposed model.

  Jordan Carter (.nz, member): (08:31) but the don't need them right - because they are an advisory committee that doesn't appoint a director?

  Alice Munyua (GAC): (08:32) Not sure the GAC would want to be voting?

  Olga Cavalli - GAC Argentina: (08:32) +1 to Alices´s comment

  Steve DelBianco  [GNSO - CSG]: (08:32) However, I believe the CCWG is open to the GAC being a co-equal Member -- if the GAC wishes to do so.  We have acknowledged that governments are stakeholders, too

  Sabine Meyer (GAC Germany): (08:32) Same doubts here, Alice.

  Holly Gregory (Sidley): (08:32) Robin, several templates speak to "blocking" board action -- which to our mind means veto.   We may be having an issue in understanding what is meant by "blocking" and we apologize if we got that wrong.  Other views?

  Avri Doria: (08:32) Exactly Jordan, but if they want to change it while this change was ongoing, it seems an option.

  Julia Wolman, Denmark, GAC: (08:32) +1 Alice

  Rosemary Fei: (08:32) Sorry, Jordan.  I forgot that some are not looking at the same thing

  Mathieu Weill, ccNSO, co-chair: (08:32) @Holly : I think we are facing a definition issue on blocking or veto indeeed. Definitely a takeaway of this discussion

  Jordan Carter (.nz, member): (08:33) A single reconsideration demand with decision in the Board; an unlimited number of referrals back and the decision not happening while blocked

  Pedro Ivo Silva [GAC Brasil]: (08:33) The issue of GAC being member or not has not yet been discussed in the GAC itself...it will need to be addressed at some point

  Jordan Carter (.nz, member): (08:33) these are fundamentally different and where WP1 has been going is more towards the second.

  Rosemary Fei: (08:34) To force the board to act, or just ask the board to consider?

  Jordan Carter (.nz, member): (08:34) Nobody has proposed one about forcing the board to act so far as I know, except in the context of not implementing AOC review recommendations, or perhaps others as per what Jonathan is saying

  Robin Gross [GNSO - NCSG]: (08:35) yes, Jordan, I don't understand why we are analyzing proposals that aren't on the table.

  Steve DelBianco  [GNSO - CSG]: (08:35) example: we want power to forec board to MAKE A DECISION about formal advice it received from an Advisory Committee.   How can we do that?

  Rosemary Fei: (08:35) Members can pass resolutions asking Board to take certain actions, or reconsiderations

  Josh Hofheimer (Sidley): (08:35) @Jordan,  as I read your exampel above, I think you mean the former is a "reconsideration" and the latter is a "veto" or "blocking right" Correct?

  Steve DelBianco  [GNSO - CSG]: (08:35) Once the board makes a deicision, that could trigger our other review & redress mechanisms

  Jordan Carter (.nz, member): (08:35) Josh: yes, I would have thought so.

  Jordan Carter (.nz, member): (08:37) I think Kavouss is exactly and utterly INCORRECT, for the record.

  Finn Petersen, GAC - DK 2: (08:37) Yes we should discuss if GAC should be a member - I do not think we should be a member and having voting rights

  Josh Hofheimer (Sidley): (08:37) @Jordan, then  to answer the question, No, the designators cannot block the Board.  They could request reconsideration, but not block board action.

  Holly Gregory (Sidley): (08:37) +1 Jordan

  Jordan Carter (.nz, member): (08:37) oh, now I un-entirely-disagree with him

  Jordan Carter (.nz, member): (08:37) as he added the vital caveat - without going to a membership model

  Jordan Carter (.nz, member): (08:37) which is sort of the whole point

  Jordan Carter (.nz, member): (08:38) good question in the end, Kavouss

  Jordan Carter (.nz, member): (08:38) similar to Chris's

  Greg Shatan: (08:38) @Jonathan, I think this is more likely to work if we limit are specific about the items where inaction triggers a right to force a board to take up the matter..

  Jordan Carter (.nz, member): (08:38) Iran and Australia, working together

  Alan Greenberg (ALAC): (08:38) But we ALWAYS knew we would have to make some structural changes to give the community the powers we want.

  Mathieu Weill, ccNSO, co-chair: (08:38) And NZ Jordan !

  Robin Gross [GNSO - NCSG]: (08:38) Greg, we are only talking about a couple powers: bylaws, budget, strat plan

  Robin Gross [GNSO - NCSG]: (08:39) Designators need to obtain budet and strat plan powers via bylaws and contract.

  David McAuley: (08:40) Agree w/Alan. Appreciate the complexity point, Kavouss, but ICANN is complex at present and some complexity in enhancing accountability seems likely, IMO. The complexity of the membership model seems modest to me given the context we are in now and the place we want to get to.

  Rosemary Fei: (08:40) Josh is describing what COULD be with deisgnators, but not what you have NOW in the bylaws

  Jordan Carter (.nz, member): (08:40) +1 David

  Jordan Carter (.nz, member): (08:41) Who is speaking now? Is it Josh?

  Rosemary Fei: (08:41) Under current bylaws, designators can remove their directors, but have no other powers unless they are drafted into the bylaws, which they are not currently.

  Robin Gross [GNSO - NCSG]: (08:41) so we need to fix the bylaws and empower the designators

  Robin Gross [GNSO - NCSG]: (08:42) isn't that also true to membership?  if we don't want to sue to get our rights?

  Samantha Eisner 2: (08:42) @Rosemary, without a specific reservation for the removal rights of directors in the Bylaws, do designators currently have that right of removal?

  Rosemary Fei: (08:42) @jordan, it's Josh of Sidley

  Holly Gregory (Sidley): (08:43) Well stated Josh

  Jordan Carter (.nz, member): (08:43) So Robin's question stands: what could we do that is a bit analogous? Could we say "You can force a reconsideration easily, under the bylaws"

  Jordan Carter (.nz, member): (08:44) ie "Hey Board, go think about this again."

  Jordan Carter (.nz, member): (08:44) and that could have a higher vote to push the same thing through, required of the Board.

  Jordan Carter (.nz, member): (08:44) The ability to say "No" forever to a Board decision definitely requires members, right

  Vrikson Acosta: (08:44) Lawyers rock ICANN :)

  Holly Gregory (Sidley): (08:44) yes, Jordan on your last question

  Rosemary Fei: (08:44) @sam, see 5222(f) -- unless right to remove designated director is taken away in bylaws/articles, they have the right to remove

  Rosemary Fei: (08:45) CA Corporations Code cite

  Robin Gross [GNSO - NCSG]: (08:45) we can recall them before we get to endless reconsideration.  or we could enforce via the judiciary we create.

  Cheryl Langdon-Orr 2: (08:45) Exactly @Chris 

  Seun Ojedeji: (08:45) In total agreement with what Chris is saying

  Samantha Eisner 2: (08:45) @Rosemary - thanks

  Seun Ojedeji: (08:45) absolute +1000

  Cheryl Langdon-Orr 2: (08:45) well articulated fro me  Thanks @Chris

  Holly Gregory (Sidley): (08:45) Robin, the judiciary you create can only really enforce that which is enforceable

  Jordan Carter (.nz, member): (08:45) We need to ask the community if they want to rely on spilling the board or not

  Jordan Carter (.nz, member): (08:46) Given that board members have described how incredibly disruptive that could be to ICANN, I think it won't stand as the main remedy

  Robin Gross [GNSO - NCSG]: (08:46) bylaws rights, contracts rights wouldn't be included in what can be enforced?

  Jonathan Zuck (IPC): (08:46) IT would be great to have some stuff along the way to spilling the board

  Seun Ojedeji: (08:46) @Jordan where is the community?

  Jordan Carter (.nz, member): (08:46) Seun: that's what we have our comment period for.

  Jordan Carter (.nz, member): (08:47) We cannot jeapordise ICANN's stability by not having a decent suite of accountability mechanisms that have real teeth

  Sabine Meyer (GAC Germany): (08:47) okay, to be open about my confusion: what element of a reconsideration would be enforced? to me, the term would simply imply "rethink" , not "retake this decision along the following lines".

  Alan Greenberg (ALAC): (08:47) Chris is making some important and I think good points.

  Seun Ojedeji: (08:48) Oh....that okay thats fine. However i generally think having escalation/knowing there are consequencies is a way of fixing things before getting to veto. Normally i would  expect strong community support for that.

  Avri Doria: (08:48) direct vs indirect control

  Robin Gross [GNSO - NCSG]: (08:48) can't designators rights be enforced through the intra-icann judiciary?  sounded like it.

  Alan Greenberg (ALAC): (08:49) Issue regarding GAC is it could give members ability to unilaterally tell Board to ignore GAC.

  Alan Greenberg (ALAC): (08:49) That would impact the balance

  Samantha Eisner 2: (08:49) There are other groups that are currently excluded from membership in addition to the GAC (in the model proposed today), so it's not just about the GAC

  Greg Shatan: (08:49) Having spilling the board as the only tool is extremely troublesome.

  Jordan Carter (.nz, member): (08:50) I do think that FUD bursts at the end of long discussions are unfair.

  Chris Disspain: (08:50) Geg it's not by far the only tool

  Greg Shatan: (08:50) Thankfully.

  Chris Disspain: (08:50) it's the ultimate tool

  Holly Gregory (Sidley): (08:50) +1 Chris

  Robin Gross [GNSO - NCSG]: (08:50) I'd like to hear about how to build the rights enforcement mechanism?  whether it be designator or membership model

  Sabine Meyer (GAC Germany): (08:50) quite optimistic to declare this the end of the discussion, Jordan ;)

  Jordan Carter (.nz, member): (08:51) well that's true

  Jordan Carter (.nz, member): (08:51) I am always an optimist!

  Cheryl Langdon-Orr 2: (08:51) ++++  fromme on that @Chris

  Rosemary Fei: (08:51) Yes, can combine designators with members; Nom Com can be a designator, other bodies become members

  Paul Rosenzweig: (08:51) Again respectful disagreement Chris ... change to the structure we want for the long term irrespective of the deadline

  Holly Gregory (Sidley): (08:51) Robin,  we will need to go do work to consider how to build out that internal enforcement mechanism.  If tasked with that by the Legal subcommittee happy to take on

  Jordan Carter (.nz, member): (08:52) Simplicity is important. So is not defeating the call for greater ICANN accountability by channeling everthing into a response (removing the Board) that the community is highly unlikely to want to exercise.

  Jordan Carter (.nz, member): (08:52) I pulled my hand down only because we are out of time

  Jonathan Zuck (IPC): (08:52) +1 Jordan

  Suzanne Radell (GAC): (08:52) If there can be classes of members, does that suggest different responsibilities/authorities?

  Robin Gross [GNSO - NCSG]: (08:52) I think we will want that so we can understand which rights can be enforced and what would be required to get them enforced.  it sounds like the only two challenges are for designator model strat plan and budget rights.

  Sabine Meyer (GAC Germany): (08:53) let's take that to the legal subteam, I'd suggest.

  Jordan Carter (.nz, member): (08:54) I certainly couldn't sign up to a settlement where the only thing we knew we could do and was legally reasonable was removing directors.

  Jordan Carter (.nz, member): (08:54) but then, I'm not an ICANN director ;)

  Paul Rosenzweig: (08:54) +1 Jordan

  Pedro Ivo Silva [GAC Brasil]: (08:55) +1 Jordan

  Chris Disspain: (08:55) I really hope that me saying I am not speaking as an ICANN dorector is unnecessary!

  Jordan Carter (.nz, member): (08:55) I am confident you're speaking as yourself

  Avri Doria: (08:55) it does seem that all requirements can be met with a combination of direct and indirect methods.  that is a good thing to know.

  Jordan Carter (.nz, member): (08:55) and not as a secret spokesperson for the ICANN Board ;)

  David McAuley: (08:56) +1 Thomas

  Robin Gross [GNSO - NCSG]: (08:56) can we plaease have the coordinating calls with the co-chairs and rappatours recorded so we can keep better track of where we are and where we are headed?

  Mathieu Weill, ccNSO, co-chair: (08:56) @Robin we"'re planning to discuss that in AOB. Request well noted

  Robin Gross [GNSO - NCSG]: (08:57) merci

  Leon Sanchez (Co-Chair, ALAC): (08:57) is that "mercy"? :P

  Robin Gross [GNSO - NCSG]: (08:57) :-)

  Chris Disspain: (08:57) I now need to leave this call to attend the next CWG meeting...I'm with you in spirit

  Jordan Carter (.nz, member): (08:57) Friday, Thomas

  Leon Sanchez (Co-Chair, ALAC): (08:57) Thanks Chris!

  Eberhard Lisse [.NA ccTLD Manager]: (08:59) I am running close to my hard stop at 14:49 my time

  James Bladel - GNSO: (08:59) Need to drop at the top of thehour for a PDP.  Thanks all.

  Eberhard Lisse [.NA ccTLD Manager]: (08:59) 14:59 rather

  Seun Ojedeji: (08:59) Bye

  David McAuley: (09:00) Jordan's description was good - a "directional" document

  Eberhard Lisse [.NA ccTLD Manager]: (09:00) I do not agree with this methog od handling this.

  David McAuley: (09:01) It was valuable, Mathieu. Good presentation Holly & team

  Holly Gregory (Sidley): (09:02) Thanks David.

  Jordan Carter (.nz, member): (09:02) We had to have the conversation we've had

  Rosemary Fei: (09:02) Thanks, David

  Josh Hofheimer (Sidley): (09:02) Thank you

  Jordan Carter (.nz, member): (09:03) Good work lawyers

  Jonathan Zuck (IPC): (09:04) so perhaps we shouldn't kill ALL of them?  ;)

  Leon Sanchez (Co-Chair, ALAC): (09:04) Yes, excellent work by our lawyers!

  Holly Gregory (Sidley): (09:05) Thanks Jordan and Leon.  Thanks all.  Yes  Jonathan-- please don't kill us all!  I have gone over a hard stop and will sign off now.

  Sabine Meyer (GAC Germany): (09:05) we have a way of fighting back, Jordan (speaking as a German lawyer.)

  Sabine Meyer (GAC Germany): (09:05) Jonathan, sorry.

  Robin Gross [GNSO - NCSG]: (09:05) yes, thanks to the lawyers.  and hope you don't mind my prodding questions.  I'm just trying to understand several options.

  Rosemary Fei: (09:06) @robin, questions improve the final product

  Holly Gregory (Sidley): (09:06) Robin, we take your good questions in the spirit offered.  This is all about understanding one another and finding the best path forward. 

  Vrikson Acosta: (09:06) ICANN's meetings page should be updated to include new mettings before and on the 2-day intensive 23rd & 24th

  David McAuley: (09:07) please email these slides

  Greg Shatan: (09:07) I think some people (not myself) don't want any intense work demands.

  Thomas Rickert, CCWG Co-Chair: (09:08) good points, Kavouss

  Sabine Meyer (GAC Germany): (09:08) I can't, simply put. I organized my work around the previous schedule and can't switch any longer.

  Sabine Meyer (GAC Germany): (09:08) but I absolutely agree with the general approach.

  Phil Buckingham: (09:09) Thank you Sidley  for an excellent presentation (to an non American , non  lawyer )  What  are the mechansim (s) to follow up with yourselves

  Robin Gross [GNSO - NCSG]: (09:09) I think we can work best in Adobe Connect.  Don't need face to face mtgs.  Too disruptive when we just meet in Adobe Connect any way.

  Leon Sanchez (Co-Chair, ALAC): (09:10) @Phil you can follow up through the legal sub-team list and address any questions to the general list with the subject "Legal questions"

  Suzanne Radell (GAC): (09:10) When possible, if would be great to have the June 19 CCWG meeting confirmed for travel planning.

  David McAuley: (09:10) +1 Suzanne

  Jordan Carter (.nz, member): (09:10) I thought 19 June was def confirmed

  Robin Gross [GNSO - NCSG]: (09:10) so did I.

  Jonathan Zuck (IPC): (09:10) me 2

  Suzanne Radell (GAC): (09:11) Good to know; thanks

  David McAuley: (09:11) thanks for slides Alice

  Phil Buckingham: (09:11) thanks Leon . Do i need  to join the legal sub team . How do I go about ?

  Robin Gross [GNSO - NCSG]: (09:12) I don't see how we will reach consensus on mechanism by friday on mechanisms.  we are still trying to understand them.

  Sabine Meyer (GAC Germany): (09:12) here's the LST wiki page, Phil: https://icann-community.icannatlassian.orgnet/wiki/displayspaces/acctcrosscomm/pages/97715721/Legal+SubTeam

  Leon Sanchez (Co-Chair, ALAC): (09:13) @Phil you don't "have to" but you are most welcome to join. You can subscribe to the list to follow the discussions and, of course, check the archived list an wiki page. should you have questions, these can be raised through the genral list as indicated :-)

  Leon Sanchez (Co-Chair, ALAC): (09:13) Thanks @Sabine!

  Sabine Meyer (GAC Germany): (09:13) not at all! I've bookmarked *everything* by now :)

  Jordan Carter (.nz, member): (09:14) Robin: I don't think we are expected to provide full consensus on everything.

  Jordan Carter (.nz, member): (09:14) I am certainly not expecting us to get to that.

  Robin Gross [GNSO - NCSG]: (09:14) agreed, Jordan.

  Jordan Carter (.nz, member): (09:14) I have some text in mind about the mechanism

  Pedro Ivo Silva [GAC Brasil]: (09:15) Sorry, need to leave. Thanks to the law firms for the impressive work done so far. Bye!

  Leon Sanchez (Co-Chair, ALAC): (09:15) @Phil just to add to your question, if you want to join the legal sub-team, please do let Staff know so they can add you to the list

  Thomas Schneider (GAC): (09:16) for your information: it is regrettable, that there has been no time to discussion stress test 18 - it was some GAC members were hoping to have an exchange on this in Istanbul, which was not possible -and  also  today it was not possible.  This is an important issue to many GAC members and  due time should be accorded to this item. tnx. t.

  Pär Brumark (GAC Niue): (09:16) Have to run!!!!Thx all!

  Olga Cavalli - GAC Argentina: (09:17) +1 to Thomas Schneider comment

  Suzanne Radell (GAC): (09:17) Concur with previously stated sentiments of appreciation for today's exchanges and the input from outside counsel

  Cheryl Langdon-Orr: (09:17) good call lots covered...much more to think on and discuss, but thanks all talk soon

  Mathieu Weill, ccNSO, co-chair: (09:17) @Thomas: we do apologize, as you heard the legal discussion carried us away, but it waws a well needed discussion I believe

  Cheryl Langdon-Orr: (09:17) bye

  Alice Munyua (GAC): (09:17) THank you co-chairs and everyone.

  Alice Munyua (GAC): (09:17) Bye

  Rosemary Fei: (09:17) Bye everyone

  Robin Gross [GNSO - NCSG]: (09:17) thanks, all!  bye

  Julia Wolman, Denmark, GAC: (09:17) bye and thanks to all