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Cross Community Working Group on Enhancing ICANN Accountability (view source)
Revision as of 23:35, 5 January 2022
, 2 years ago→WS 1 Drafts and Public Comments
* Create a two-tiered board structure where the ICANN community's representatives sit as a Supervisory Board and have specific powers of review or recall, and the ICANN Board as currently composed maintains its role of strategic and fiscal governance.<ref>[https://community.icann.org/display/acctcrosscomm/WP1+Draft+Documents?preview=/52888421/53281113/CCWG-ACCT%20-%20WP1%20-%20Scope%20Measures%20Mechanisms%20-%20draft2.pdf CCWG-Accountability Work Stream 1 Workspace - Scope, Powers, and Mechanism Working Paper], Work Party 1 (Community Empowerment), Feb. 3, 2015</ref>
* Create a two-tiered board structure where the ICANN community's representatives sit as a Supervisory Board and have specific powers of review or recall, and the ICANN Board as currently composed maintains its role of strategic and fiscal governance.<ref>[https://community.icann.org/display/acctcrosscomm/WP1+Draft+Documents?preview=/52888421/53281113/CCWG-ACCT%20-%20WP1%20-%20Scope%20Measures%20Mechanisms%20-%20draft2.pdf CCWG-Accountability Work Stream 1 Workspace - Scope, Powers, and Mechanism Working Paper], Work Party 1 (Community Empowerment), Feb. 3, 2015</ref>
In addition, outside legal counsel for the working group provided another option based on the California corporations code. Section 5220 of the code provides for designated board seats, to be selected by one or more "designators."<ref name="ccc5220">[https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5220&lawCode=CORP California Corporations Code, Section 5220], as amended January 2019</ref> Directors can be seated on the board by a designator without a vote of the members.<ref name="ccc5220" /> Outside counsel noted, however, that the designator model would not be able to fulfill all the goals of the empowered community outlined by Work party 1.<ref>[https://community.icann.org/display/acctcrosscomm/WP1+Draft+Documents?preview=/52888421/53283081/WP1-%20Cover%20Memo%20(CCWG%20Powers).pdf CCWG-Accountability Workspace - Sidley Austin memo re: community powers], April 16, 2015</ref> The first draft proposal focused on a "Reference Mechanism" based on the membership model when presenting its plan for the ICANN empowered community.<ref name="ws1draft1" /> It acknowledged and briefly discussed each of the other models, as well as a proposal from outside legal counsel regarding the creation of designated board seats, with SOs and ACs appointed as "designators" for those seats.<ref name="ws1draft1" /> After its discussion of the options, the report provided the following conclusion:
In addition, outside legal counsel for the working group provided another option based on the California corporations code. Section 5220 of the code provides for designated board seats, to be selected by one or more "designators."<ref name="ccc5220">[https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5220&lawCode=CORP California Corporations Code, Section 5220], as amended January 2019</ref> Directors can be seated on the board by a designator without a vote of the members.<ref name="ccc5220" /> Outside counsel noted, however, that the designator model would not be able to fulfill all the goals of the empowered community outlined by Work party 1.<ref>[https://community.icann.org/display/acctcrosscomm/WP1+Draft+Documents?preview=/52888421/53283081/WP1-%20Cover%20Memo%20(CCWG%20Powers).pdf CCWG-Accountability Workspace - Sidley Austin memo re: community powers], April 16, 2015</ref> The first draft proposal focused on a "Reference Mechanism" based on the membership model when presenting its plan for the ICANN empowered community.<ref name="ws1draft1" /> It acknowledged and briefly discussed each of the other models, as well as a proposal from outside legal counsel regarding the creation of designated board seats, with SOs and ACs appointed as "designators" for those seats.<ref name="ws1draft1" /> After its discussion of the options, the report provided the following conclusion:
<blockquote>None of the mechanism possibilities should be considered “off the table”. The work of the CCWG-Accountability has proceeded quickly, and our counsel are rapidly becoming familiar with the complexities of ICANN’s history and current approach to dealing with many of these matters.<br />
<blockquote>None of the mechanism possibilities should be considered “off the table”. The work of the CCWG-Accountability has proceeded quickly, and our counsel are rapidly becoming familiar with the complexities of ICANN’s history and current approach to dealing with many of these matters.<br />
That said, the CCWG-Accountability is clearly of the view that the SO/AC Membership Model is the currently preferred approach, and relies on this in much of what follows.<br />
That said, the CCWG-Accountability is clearly of the view that the SO/AC Membership Model is the currently preferred approach, and relies on this in much of what follows.<br />
At the group's first working session, also on October 19, the group initially gathered information and feedback collected outside of official meetings.<ref name="54work1">[https://meetings.icann.org/en/dublin54/schedule/mon-ccwg-accountability/transcript-ccwg-accountability-19oct15-en ICANN 54 Archive - CCWG-Accountability Working Session 1], October 19, 2015</ref> [[Bruce Tonkin]] gave his impression of the ICANN Board's current attitude toward the sole designator model and other structural aspects of the proposal:
At the group's first working session, also on October 19, the group initially gathered information and feedback collected outside of official meetings.<ref name="54work1">[https://meetings.icann.org/en/dublin54/schedule/mon-ccwg-accountability/transcript-ccwg-accountability-19oct15-en ICANN 54 Archive - CCWG-Accountability Working Session 1], October 19, 2015</ref> [[Bruce Tonkin]] gave his impression of the ICANN Board's current attitude toward the sole designator model and other structural aspects of the proposal:
<blockquote>With respect to the bylaws status, the board supports the consideration of the designator model as the closest to our current governance model. So basically from our perspective, the board will continue to actively participate in refining how best to implement the community powers and following up on the work that was done on Saturday morning. And the board is willing to participate in investigating how a sole designator model could be implemented.<ref name="54work1" /></blockquote>
<blockquote>With respect to the bylaws status, the board supports the consideration of the designator model as the closest to our current governance model. So basically from our perspective, the board will continue to actively participate in refining how best to implement the community powers and following up on the work that was done on Saturday morning. And the board is willing to participate in investigating how a sole designator model could be implemented.<ref name="54work1" /></blockquote>
===Third Draft Proposal===
After the Dublin Meeting, the Workstream 1 team continued work on the draft proposal. A third draft proposal was published on November 30, 2015.<ref name="ws1draft3">[https://community.icann.org/pages/viewpage.action?pageId=56145016 CCWG-Accountability Workstream 1 Workspace - Third Draft Proposal], November 30, 2015</ref>
====Adopting a "Sole Designator" model for the Empowered Community====
As foreshadowed at ICANN 54, the team made significant changes to the proposed reference model for the Empowered Community.<ref name="ws1draft3a1">[https://community.icann.org/download/attachments/56145016/Formatted-Annex%201%201-PROOFED.pdf CCWG-Accountability WS1 Workspace - Annex 1 to Third Draft Proposal: Empowered Community], November 30, 2015</ref> The team proposed a combination of inherent statutory and legal rights of the Empowered Community on the one hand, and a process of engagement, escalation, and enforcement on the other:
<blockquote>To implement the Sole Designator model, ICANN’s Supporting Organizations and Advisory Committees would create a unified entity to enforce their Community Powers. This unified entity will be referred to as the “Empowered Community.”<br />
Under California law, the Sole Designator has the statutory right to appoint and remove ICANN Board Directors, whether individually or the entire Board.<br />
If the ICANN Board refused to comply with a decision by the Empowered Community to use the statutory right, the refusal could be petitioned in a court that has jurisdiction to force the ICANN Board to comply with that decision.<br />
The CCWG-Accountability accepts that only having the above statutory power is sufficient given:
# All of the recommended Work Stream 1 accountability mechanisms are constituted as Fundamental Bylaws and protected from any changes without Empowered Community approval...
# The Empowered Community has legal standing as a California-based, unincorporated association...
# The Empowered Community and the rules by which it is governed will be constituted as a Fundamental Bylaw along with provisions to protect it from any changes without its own approval...
# The Articles will be amended to clarify that the interests of the corporation will be determined through a bottom-up multistakeholder process.<ref name="ws1draft3" /></blockquote>
The proposal addresses the process of engagement, escalation, and enforcement in its second recommendation:
<blockquote>The CCWG-Accountability expects that disagreements between the ICANN community and the ICANN Board might arise from time to time. In an effort to prevent such disagreements from happening, the CCWG-Accountability recommends that ICANN be required to engage with the community on any key decisions it is considering, such as budgets or changing Bylaws. Should disagreements arise, the CCWG-Accountability proposes a series of procedures that ensure all sides have the chance to completely and thoroughly discuss any disagreements and have multiple opportunities to resolve any such issues before having to resort to the powers of the Empowered Community.<br />
This process is referred to as '''Engagement, Escalation, and Enforcement'''.<ref name="ws1draft3" /></blockquote>
The changes were made in response to the public comments criticizing the membership model from the second draft proposal. As noted in the proposal:
<blockquote>In the Public Comment Period on the “Second Draft Proposal on Work Stream 1 Recommendations,” concerns were raised about the Sole Member model. Under California law, such “members” have certain statutory powers that cannot be waived. Commenters expressed concern that these rights, such as the ability to dissolve the corporation, could not be adequately constrained and might have unintended and unanticipated consequences.<br />
To address the concerns described above, the CCWG-Accountability now recommends implementing a Sole Designator model. Under California law, the Sole Designator only has the statutory power to appoint and remove individual ICANN Board Directors or the entire Board, which is a requirement of the CCWG-Accountability and the CWG-Stewardship. This removes the concerns related to unintended and unanticipated consequences of the additional statutory powers associated with a member.<br />
Given that the right to inspect, as outlined in California Corporations Code 6333, is not a statutory right of a Designator, and that the community felt this was a critical requirement, the CCWG-Accountability recommends this right be granted to the Sole Designator in the Fundamental Bylaws.<br />
The CCWG-Accountability external legal counsel informed the group that adopting a Sole Designator model could effectively be implemented while meeting the community’s requirements and having minimal impact on the corporate structure of ICANN.<ref name="ws1draft3" /></blockquote>
The "sole designator" model was originally suggested by outside counsel during the team's research in spring 2015. The reference model as proposed would grant statutory powers for the "nuclear options" - removal of board members, and removal of the entire board, as well as adding the right to inspect the records of the corporation.
==Work Stream 2==
==Work Stream 2==