RE: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

["Paul McGrady" <policy@xxxxxxxxxxxxxxx>]

Thanks Phil.  I'll need to run this past the IPC of course, but my initial
thoughts are:

 

I guess I read James' rather artful language as a means of pointing out the
lack of adequate funding rather than an instruction that WS2 shouldn't look
at the formation jurisdiction issue.  Perhaps we can strengthen the language
a bit to make that clear.  How about:

 

"It is the position of the GNSO Council that any choice by WS2 participants
to revisit the formation jurisdiction or nature of organization of the ICANN
legal entity, as established by CCWG-Accountability Work Stream 1, namely
California, would not be adequately supported by this projected budget as
any change in formation jurisdiction or nature of organization of the ICANN
legal entity would necessarily lead to undoing much of the work of
Workstream 1.  In the event that WS@ participants open up this topic,
additional funding for legal advice will become necessary."

 

Does that work?

 

In a related thought, I'm of the opposite view that formation jurisdiction
or nature of organization of the ICANN legal entity should not be reopened
in WS2 as it is not inevitable that it turn out the way you hope, with a
fundamental bylaw making California permanent (or as permanent as possible).


 

Best,

Paul

 

 

From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Phil Corwin
Sent: Monday, September 19, 2016 5:40 PM
To: James M. Bladel <jbladel@xxxxxxxxxxx>; GNSO Council List
<council@xxxxxxxxxxxxxx>
Subject: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability
Budget Request
Importance: High

 

James:

 

The following remarks are my personal views, and I will share them with the
BC Executive Committee and BC members prior to our September 29th meeting to
assure that any statement I make/position I take at that meeting is
consistent with the consensus within the BC.

 

That said, I have some significant concerns about the wording of the draft
Resolution, and shall now set them forth.

 

Use of Budget Constraints to limit range of discussion within WGs_-

 

Your cover note states, "I would like to draw your attention to WHEREAS #4
and RESOLVED #4, in which I attempted to capture the concerns raised by Phil
and Paul and others regarding revisiting the subject of ICANN Jurisdiction
in WS2". My comments on this draft resolution are solely my own and I will
let Paul chime in, or not, as he sees fit.

 

Whereas #4 states --  "The GNSO Council notes that many members of the GNSO
community have expressed the view that the projected budget does not support
revisiting the topic of the jurisdiction of ICANN"s organization."

 

Resolved #4 states - "It is the position of the GNSO Council that revisiting
the jurisdiction or organization of the ICANN legal entity, as established
by CCWG-Accountability Work Stream 1, is not supported by this projected
budget."

 

My very public personal position on ICANN's organizational jurisdiction is
that it was a mistake not to resolve this matter during WS1 (and the failure
to do so is now being cited by Congressional critics of the IANA
Transition), and that ICANN's U.S. incorporation should be enshrined in a
Fundamental Bylaw as an expedited outcome of WS2.

 

Notwithstanding that clear personal view, I have concerns about the proposed
language cited above. For one thing, it is presently ambiguous - it is not
clear whether the import of the language is that:

*         The projected budget should be increased so that "the topic of the
jurisdiction of ICANN"s organization" can be revisited or addressed (the
word "revisited" is also problematic, as it implies that some conclusive
decision was made on this matter during WS2, whereas the record is to the
contrary), or

*         The topic of organizational jurisdiction should be off-limits in
WS2 due to budget constraints

 

Again, my personal view is that this topic of ICANN's organizational
jurisdiction should be further addressed in WS2 - and should be definitively
resolved through the adoption of a Fundamental Bylaw enshrining US
incorporation.

 

Notwithstanding that personal view, I am opposed to any Resolution which
takes the position that budget considerations should limit the scope of
inquiry and discussion of any WS2 subgroup. The budget, and especially that
for impartial outside legal expertise on accountability matters on which
ICANN Legal may have an inherent bias (such as transparency or staff
accountability) should be adequate to support the necessary work, rather
than suggesting that the work should be constrained to fit within the scope
of the budget.

 

Adequacy of the budget for outside legal expertise

 

The other problem I have with the draft Resolution is that it does not speak
at all to the general concerns I and others have expressed about the
adequacy of the budget for outside legal expertise for WS2 activities, as
well as the proposed process for obtaining authorization of additional
funding. 

 

My recollection is that the WS2 legal budget is just one-tenth of the
amounts expended for WS1 -- $1.4M compared to $14M. I would certainly
anticipate that WS2 outside legal expenses will be substantially less than
in WS1 because major revisions and drafting of Bylaws and Articles of
Incorporation will not be required. Yet there is still reason to believe
that a 90% reduction is excessively severe and likely to fall short of
requirements for a quality and fully considered work product.

 

It is also my recollection that under the proposed budget and accompanying
procedures, even if the Legal Committee agrees that additional funding is
required at some point in the process, the Board has unbridled discretion
and decisional authority to accept, reject, or modify such a request for
additional funds. This is very troubling given that WS2 addresses such
matters as organizational transparency, and Board and staff accountability. 

 

Therefore, at this time I cannot personally support the proposed language in
Resolved clause #3 - "The GNSO Council expects the CCWG-Accountability and
staff to work within the constraints of this approved budget, and that
excess costs or request for additional funding will be considered only in
extraordinary circumstances." (Emphasis added)

 

An "extraordinary circumstances" standard for authorizing additional funds
is, in my opinion, far too high given that the budget for WS2 was set by a
small group and only put out for public reaction after the fact. Further, it
is absolutely unacceptance as a standard for consideration of additional
funding requests - every such request should be considered without bias on
its own separate merits, and not face a high hurdle simply because it
exceeds a legal assistance budget that some Council and community members
already fear may be inadequate to support the necessary work delegated to
WS2. 

 

Summing up, my personal view is that this Resolution should be modified to:

1.       Eliminate any suggestion that discussion of ICANN's organizational
locus of incorporation is off-limits for the Jurisdiction subgroup based
upon budget considerations

2.       Express general concern about the adequacy of the funds budgeted
for outside legal assistance, as well as the proposed process for deciding
whether additional funds should be allocated at a future point of time.

 

I thank you and my fellow Councilors for considering these views, and look
forward to further discussion of this matter.

 

Regards, Philip

 

 

 

Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

202-255-6172/Cell

 

Twitter: @VlawDC

 

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

 

From: owner-council@xxxxxxxxxxxxxx <mailto:owner-council@xxxxxxxxxxxxxx>
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of James M. Bladel
Sent: Monday, September 19, 2016 4:02 PM
To: GNSO Council List
Subject: [council] Draft Motion - GNSO Validation of CCWG-Accountability
Budget Request

 

Council Colleagues - 

 

Attached and copied below, please find a draft motion for consideration
during our next GNSO Council call (29 SEP), that examines the subject of the
proposed budget & cost control mechanisms for CCWG-ACCT and Work Stream 2.


 

In particular, I would like to draw your attention to WHEREAS #4 and
RESOLVED #4, in which I attempted to capture the concerns raised by Phil and
Paul and others regarding revisiting the subject of ICANN Jurisdiction in
WS2.  Please review these provisions closely, and make sure that they
accurately reflect these points.

 

Thank you,

 

J.

 

 

 

Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

 

WHEREAS, 

 

1.      Per its Charter, the Project Cost Support Team (PCST) has supported
the CCWG-Accountability in developing a draft budget and cost-control
processes for the CCWG-Accountability activities for FY17, and has also
developed a historical analysis of all the transition costs to date (see
https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf).

 

2.      The CCWG-Accountability FY17 budget was presented at its plenary
meeting of June 21st and approved for transmission to the Chartering
Organizations for validation as per the process agreed with the PCST. This
request for validation was received on 23 June.

 

3.      Following review and discussion during ICANN56, the GNSO Council
requested
<https://gnso.icann.org/en/correspondence/bladel-to-bfc-ccwg-accountability-
chairs-10jul16-en.pdf>  a webinar on this topic which was held on 23 August
(see transcript at
https://gnso.icann.org/en/meetings/transcript-ccwg-accountability-webinar-23
aug16-en.pdf, recording at
http://audio.icann.org/gnso/gnso-ccwg-accountability-webinar-23aug16-en.mp3
and AC recording at https://icann.adobeconnect.com/p8fu99qpt7d/).  

 

4.      The GNSO Council notes that many members of the GNSO community have
expressed the view that the projected budget does not support revisiting the
topic of the jurisdiction of ICANN"s organization.

 

5.      The GNSO Council has discussed and reviewed all the relevant
materials. 

 

RESOLVED,

 

1.      The GNSO Council hereby accepts the proposed CCWG-Accountability
FY17 budget, as well as the cost-control processes presented in conjunction
with the CCWG budget (see
https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf). 

 

2.      The GNSO Council expects to receive regular updates on actual
expenditures as tracked against this adopted budget, and reserves the right
to provide further input on the budget allocation in relation to the
CCWG-Accountability related activities.

 

3.      The GNSO Council expects the CCWG-Accountability and staff to work
within the constraints of this approved budget, and that excess costs or
request for additional funding will be considered only in extraordinary
circumstances. 

 

4.      It is the position of the GNSO Council that revisiting the
jurisdiction or organization of the ICANN legal entity, as established by
CCWG-Accountability Work Stream 1, is not supported by this projected
budget.

 

5.      The GNSO Council requests the GNSO Secretariat to communicate this
resolution to the CCWG-Accountability Chairs, and to the office of the ICANN
CFO.     

 

 

  _____  

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