[council] FW: here's what I have - Fadi on CCWG at GAC

[Phil Corwin <psc@xxxxxxxxxxx>]

More raw transcript...



Philip S. Corwin, Founding Principal

Virtualaw LLC

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"Luck is the residue of design" -- Branch Rickey



________________________________
From: Jordan Carter [jordan@xxxxxxxxxxxxxxxxx]
Sent: Saturday, October 17, 2015 11:45 AM
To: Phil Corwin
Subject: Fwd: here's what I have - Fadi on CCWG at GAC



---------- Forwarded message ----------
From: Jordan Carter <jordan@xxxxxxxxxxxxxxxxx<mailto:jordan@xxxxxxxxxxxxxxxxx>>
Date: Saturday, 17 October 2015
Subject: here's what I have - Fadi on CCWG at GAC
To: Keith Davidson <keith@xxxxxxxxxxxxxxxxx<mailto:keith@xxxxxxxxxxxxxxxxx>>


this started part way through...
J.


TO THE BOARD, IT HAS A RELIABLE MECHANISM TO GO TO A ARBITRATION COURT -- 
EXCUSE ME TO GO TO A PANEL WHICH IS STANDING AND GET A JUDGMENT, AN AWARD, 
JUDGMENT AGAINST A BOARD DECISION.
 NOW, THE CORE, THE COMMUNITY IS WORRIED WHAT HAPPENS WHEN WE GET THIS?  WHAT 
IF THE ICANN BOARD FLAUNTS IT?  OR WHAT IF THE ICANN BOARD DOESN'T SHOW UP TO 
THE BINDING ARBITRATION?
 WELL, FIRST THEY SAY HERE VERY CLEARLY, IF ICANN CHOOSES NOT TO PARTICIPATE IN 
THE COMMUNITY IRP DECISIONS, THE DECISION IS STILL BINDING.  AND WE WILL PUT 
THAT IN THE BYLAWS.  WE WILL MAKE SURE IT IS ENFORCED SO THAT THE COMMUNITY 
ALWAYS GETS A BINDING JUDGMENT THERE.  THEN.  NEXT THING BECOMES WELL, WHAT IF 
WE HAVE THE BINDING JUDGMENT AND ICANN DOES NOT ABIDE BY IT?
 WHICH COULD HAPPEN.  I THINK IT'S REMOTE.  IT'S NEVER HAPPENED.  WE'VE NEVER 
HAD A JUDGMENT AGAINST ICANN THAT WAS NOT ABIDED BY.  BUT IT COULD HAPPEN.  AND 
IF I WERE IN YOUR SEATS OR IN THE COMMUNITY SEATS, I'D SAY LOOK, I WANT BELTS 
AND SUSPENDERS.  IF YOU TELL ME THAT'S A BINDING AWARD, I NEED IT TO BE 
ENFORCEABLE.
 THE WAY TO ENFORCE A BINDING AWARD ON A CALIFORNIA CORPORATION IS TO GO TO A 
CALIFORNIA COURT AND ENFORCE IT.
 THAT'S THE ONLY WAY TO DO IT.
 NOW, I THINK THE CHANCES OF THIS ARE 00.00001%.  BUT IT'S AN ENFORCEMENT.  
IT'S NECESSARY.  WE NEED TO HAVE IT BECAUSE SOME PEOPLE IN THE COMMUNITY HAVE 
ALREADY SAID WE NEED ENFORCEABILITY.
 SO THE ENFORCEABILITY IS DESCRIBED IN SECTION 15, APPROACH A.
 THERE ARE MANY WAYS TO REACH ENFORCEABILITY.  THE COMMUNITY IS DISCUSSING A 
MODEL CALLED "THE DESIGNATOR"  WHICH IS A MODEL TO ENFORCE, TO GO TO COURT AND 
SAY I'M A DESIGNATOR AND I WANT TO ENFORCE A BINDING AWARD.  THAT'S POSSIBLE.
 THAT'S ONE WAY TO DO IT.  THERE ARE OTHER WAYS TO DO  IT.  I'LL GIVE YOU A WAY 
THAT HAS NOT EVEN BEEN DISCUSSED IN MY PAPER.  WE COULD IN OUR BYLAWS SAY THAT 
OUR OMBUDSMAN IS AN ENFORCER.  AND OUR OMBUDSMAN BECOMES THE SINGLE DESIGNATOR 
THAT COULD SHOW UP AND ENFORCE ANY DECISION.  WE CAN DO THAT TOO.  THERE ARE 
MANY POSSIBILITIES.  IT IS NOT FOR ME TO DECIDE WHAT RIGHT WAY TO GO.  I THINK 
WE NEED TO RELY ON THE CCWG AND THE PEOPLE WHO ARE WORKING HARD TO FIND A GOOD 
WAY TO ENFORCE.
 THE LAST THING I WANT TO BRING UP TO YOUR ATTENTION IS BOARD REMOVAL.  FOR 
THOSE OF YOU WHO UNDERSTAND THE CORPORATE WORLD, WHICH I COME FROM, IN THE 
CORPORATE WORLD, WHEN THE SHAREHOLDERS OF A CORPORATION ARE UPSET WITH THE 
ACTIONS OF A BOARD, WHAT DO THEY DO?  THEY REMOVE THE BOARD.   SHE HAVE A 
SHAREHOLDERS MEETING AND REMOVE THE BOARD OR REMOVE BOARD MEMBERS.  SO, IF YOU 
LOOK AT MY SECTION 4, THERE ARE MANY WAYS TO REMOVE BOARD MEMBERS.   LET'S 
AGREE ON A PRINCIPLE.  IS IT IMPORTANT THAT THE COMMUNITY BE ABLE TO REMOVE 
BOARD MEMBERS?  DO WE BELIEVE THAT?  I'LL SPEAK FOR MYSELF.  I THINK YES.  I 
THINK IT IS IMPORTANT FOR THE COMMUNITY TO BE ABLE TO REMOVE BOARD MEMBERS.
 THE QUESTION IS:  HOW AND WHAT ARE THE RULES AROUND THAT?  SO FOR EXAMPLE, IF 
I'M SITTING AT AN ICANN BOARD  MEETING AND I'M ONE OF THE BOARD MEMBERS NOW, I 
JUST HAPPEN TO HAVE THE EASY SEAT.  I'M JUST THE CEO SO I GET A BOARD SEAT.  
EVERYBODY ELSE HALLS TO GO THROUGH MANY, MANY COMMUNITY PROCESSS TO GET THERE.  
BUT MY FELLOW 15 BOARD MEMBERS, THEY SIT AT THE BOARD MEETING.  WHAT IS OUR 
ULTIMATE ROLE?  OUR ULTIMATE ROLE IS TO ACT AS THE PROTECTOR OF THE MISSION AND 
THE PUBLIC INTEREST IN ICANN.  THAT IS OUR ULTIMATE ROLE.  IN FACT, THE BOARD 
OF DIRECTORS OF ICANN IS THE ONLY PLACE ULTIMATELY WHERE AFTER THINGS GO 
THROUGH YOU -- AND CLEARLY, GOVERNMENTS HAVE A BIG ROLE IN ENSURING THE PUBLIC 
PERFECT.  BUT ONCE IT GETS TO A DECISION POINT, THE BOARD, WHICH INCLUDES 
PEOPLE FROM THE BUSINESS AND FROM DIFFERENT PARTS OF ICANN, MUST UPHOLD THE 
PUBLIC INTEREST.   IF THEY DON'T, WE LOST THAT OPPORTUNITY.
 NOW, IF I'M SITTING AT THE BOARD SEAT AND I KNOW THAT IF I DON'T DO WHAT MY 
COMMUNITY TELLS ME, MY NECK WILL BE CUT TOMORROW MORNING, HOW WILL I REALLY PAY 
ATTENTION TO THE PUBLIC INTEREST?  THEREFORE, IF WE WANT TO REMOVE BOARD 
MEMBERS, WE SHOULD REMOVE THEM BECAUSE THEY DID NOT ADHERE TO THE BYLAWS, THE 
MISSION OF ICANN.
 AN SO OR AC CAN REMOVE THEIR BOARD MEMBER BUT THERE HAS TO BE A PROCESS.  IT 
CANNOT BE THAT WE JUST REMOVE THEM BECAUSE THEY DIDN'T VOTE OUR WAY.  THEN 
SUDDENLY, WE HAVE A BEHOLDEN, CAPTIVE BOARD.  THAT'S NOT HOW WE WILL PRESERVE 
THE PUBLIC INTEREST IN ICANN.
 SO YES, LET'S HAVE BOARD REMOVAL.  HERE WE PROPOSED SEVERAL IDEAS.  EVERY 
BOARD MEMBER COULD SIGN A CONTRACT BEFORE THEY BECOME A BOARD MEMBER.  AND THE 
CONTRACT INCLUDES CONDITIONS THAT THE COMMUNITY COULD SET.  FOR EXAMPLE, 
REMEMBER THE BINDING ARBITRATION I JUST DISCUSSED?  IF A BINDING ARBITRATION 
AWARD SAYS ICANN SHOULD DO X AND THE BOARD MEMBER VOTES AGAINST IT, YOU COULD 
PUT IN THEIR CONTRACT THAT IF THEY DO THAT, THEY MUST RESIGN.  INSTANTLY.   
THEY'RE OFF THE BOARD.  SO WE COULD PUT CONDITIONS TO HOLD BOARD MEMBERS TO THE 
THINGS WE CARE ABOUT.  WE COULD ALSO MAKE SURE THAT THE BINDING ARBITRATION CAN 
REMOVE A BOARD MEMBER.  WE CAN MAKE SURE THAT THAT BINDING ARBITRATION, AS I 
JUST DESCRIBED BEFORE, OF COURSE, IS ENFORCEABLE.  SO THEN YOU GIVE THE 
ULTIMATE CONTROL OF THAT BOARD MEMBER.
 I THINK THE CCWG IS MOVING RIGHT NOW AS WE SPEAK IN THE RIGHT DIRECTION OF 
BRINGING OUR COMMUNITY TOGETHER AROUND COMMON SOLUTIONS.  I AM CONFIDENT THAT 
WITHIN A FEW DAYS WE WILL ALL BE CLEAR ON WHAT THE COMMUNITY WANTS.  I THINK WE 
ARE IN SYNC.
 IN CLOSING, I JUST WOULD LIKE TO SAY THIS:  AS I LEAVE ICANN AND PREPARE TO 
GO, WHAT AM I MOST WORRIED ABOUT IN THIS PROCESS?  WHAT IS THE THING THAT KEEPS 
ME UP AT NIGHT?  WHEN I MEET MANY OF YOUR GOVERNMENTS AND I WAS JUST AT THE  
ITU MEETING IN BUDAPEST AND MET MANY, MANY MINISTERS AND GOVERNMENTAL 
OFFICIALS, WHAT THEY ASKED ME, WHAT ARE YOU WORRIED ABOUT NOW THAT YOU'RE 
LEAVING?  WHAT IS TOP OF YOUR MIND?  I'LL BE CANDID WITH YOU.  I AM VERY 
WORRIED THAT WE, AT THE END OF THIS ACCOUNTABILITY REFORM, END UP DAMAGING THE 
MULTISTAKEHOLDER MODEL.  IF WE DAMAGE THE MULTISTAKEHOLDER MODEL, WHICH HAD 
STOOD -- HAS STOOD THE TEST OF TIME, AND CREATE ANY STRUCTURES THAT ACTUALLY 
MAKE US CAPTURABLE -- AND BY THE WAY, WE ALL THINK OF CAPTURE WRONGLY AS 
SOMETHING GOVERNMENTS COULD DO.  FRANKLY, GOVERNMENTS AT ICANN HAVE BEEN 
PROBABLY THE MOST COOPERATIVE TO MAKE THIS PROCESS CONCLUDE PROPERLY.  I AM 
MOST WORRIED ALSO OF SHIFTING CAPTURE TO SPECIAL INTERESTS.  WE MUST MAKE SURE 
-- AND YOU GOVERNMENTS, MUST HELP US MAKE SURE THAT ICANN'S STRENGTH IS ITS 
INDEPENDENCE.  ITS INDEPENDENCE.  IF WE LOSE THAT INDEPENDENCE, WE LOSE THE 
MULTISTAKEHOLDER MODEL, WE LOSE EVERYTHING WE HAVE.  WE MUST REMAIN 
INDEPENDENT.  INDEPENDENT OF CAPTURE, INDEPENDENT OF SPECIAL INTERESTS, AND 
INSTEAD SERVING THE PUBLIC INTEREST.  THAT IS MY BIGGEST WORRY.  AND MY CHANCE, 
AND YOUR CHANCE, LADIES AND GENTLEMEN, THIS WEEK, IS TO HELP US MAKE SURE WE 
STICK TO THESE PRINCIPLES AND WE KEEP ICANN DIVERSE, INCLUSIVE, OPEN, AND 
MULTISTAKEHOLDER.  THANK YOU.

 >>CHAIR SCHNEIDER:  THANK YOU VERY MUCH, FADI.  I NOTE THAT KAVOUSS, OUR 
 >>COLLEAGUE FROM IRAN HAD TO LEAVE THE  MEETING BUT WILL COME BACK.  SO HE 
 >>ANNOUNCED THAT HE WILL WANT TO TAKE THE FLOOR.  SO IN CASE I FORGET IT, 
 >>PLEASE REMIND ME.  AND I NOTE ALSO THAT MATHIEU WANTED TO SAY SOMETHING AND 
 >>THEN I GIVE THE FLOOR TO ALL OF YOU, THANK  YOU.

 >>MATTHIEU WEILL:  THANK YOU VERY MUCH, CHAIR.  NO, I'LL SPEAK IN ENGLISH FOR 
 >>THIS ONE.
 AS YOU WILL HAVE ALL NOTED, THERE WAS A LITTLE BIT OF DUPLICATION BETWEEN 
FADI'S SPEECH AND THE PREVIOUS PRESENTATIONS.  I WOULD LIKE TO CORRECT A FEW 
POINTS ABOUT THE WAY FADI HAS CHARACTERIZED THE WORK OF OUR GROUP WHICH I THINK 
IS IMPORTANT FOR THIS ROOM TO BE AWARE OF.  PLAINTIFF NUMBER ONE, THE SLIDE 
DECK THAT FADI HAS INTRODUCED, GIVEN THAT WE'VE HAD MORE THAN 14 HOURS OF 
MEETING ALREADY IS  OUTDATED.  I STRONGLY ENCOURAGE THAT YOU REFER TO OLGA'S 
PRESENTATION AS WELL AS THE ONE WE'VE JUST PROVIDED.   BECAUSE YES, THINGS ARE 
MOVING FAST.  SO FOCUSING ON THE MOST RECENT MATERIAL CAN BE VERY IMPORTANT TO 
ENSURE YOU HAVE EFFICIENT DEBATES AND DISCUSSIONS.
 SECONDLY, FADI REFERRED TO OUR GROUP AS INVESTIGATING A DESIGNATOR MODEL.  
THAT IS NOT ADEQUATELY CAPTURING WHERE WE ARE NOW.  WHERE WE ARE NOW IS THAT 
OUR SECOND REPORT IS FOCUSED ON A SOLE MEMBERSHIP MODEL AND THERE HAS BEEN 
WORK.   AND THE WAY TO INVESTIGATE HOW A SOLE DESIGNATOR MODEL WOULD LOOK LIKE 
BUT IN NO WAY IS OUR GROUP AT A POINT WHERE IT HAS BEEN SHIFTING ITS FOCUS ON 
SOMETHING ELSE.
 THERE IS -- IT'S ALSO USEFUL TO REPORT THAT THE ARBITRATION MODEL THAT HAS 
BEEN PART OF THE BOARD COMMENT IN THE PUBLIC COMMENT HAS BEEN ASSESSED.  THERE 
IS -- THERE HAS BEEN LEGAL REVIEWS WORK IN THE WORK PARTIES ON THIS.  AND I 
THINK A SUMMARY COULD BE THERE ARE SERIOUS LEGAL UNCERTAINTIES ABOUT ITS 
EFFICIENCY.
 THERE'S EVEN DEBATE AMONG LAWYERS.  THAT'S WHY I'M MENTIONING UNCERTAINTIES 
ABOUT LEGAL EFFICIENCY.
 AND FINALLY, I THINK THE DISCUSSION ON THE BOARD MEMBER REMOVAL WAS 
INTERESTING AND WE GOT FADI'S PERSONAL VIEW ON THIS.  BUT IT'S WORTH NOTEING 
THAT THIS VERY MOFEN WE'VE MADE TREMENDOUS PROGRESS WITH A LOT OF BOARD MEMBERS 
BEING PERSONALLY INVOLVED IN EXPRESSING THEIR SUPPORT FOR THE WAY FORWARD THAT 
WE HAVE FOUND, SO I THINK THIS IS A GOOD EXAMPLE OF THE PROGRESS WE'RE MAKING.
 SO I WILL JOIN FADI IN SAYING THAT WE HAVE LITTLE TIME.   THIS IS REALLY THE 
MOMENT TO ENGAGE, DISCUSS, AND DISCUSS ON THE BASIS OF FACTS THAT ARE ACCURATE 
AND AVOID SPREADING ANY UNCERTAINTIES THAT MIGHT MAKE THE DECISION HARDER TO 
MAKE.   AND THIS IS OUR COLLECTIVE RESPONSIBILITY.  THANK YOU VERY MUCH.

--
Jordan Carter

Chief Executive
InternetNZ

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email: 
jordan@xxxxxxxxxxxxxxxxx<https://exchange.sierracorporation.com/owa/UrlBlockedError.aspx>
Skype: jordancarter
Web: www.internetnz.nz<http://www.internetnz.nz>

A better world through a better Internet




--
Jordan Carter
Chief Executive, InternetNZ

+64-21-442-649 | jordan@xxxxxxxxxxxxxxxxx<mailto:jordan@xxxxxxxxxxxxxxxxx>

Sent on the run, apologies for brevity