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

[Phil Corwin <psc@xxxxxxxxxxx>]

Appreciate the thoughts, Paul.

In his role as rapporteur for the Jurisdiction subgroup, Greg Shatan has 
circulated thoughts this week on whether and how deeply the Jurisdiction 
subgroup should explore the subject of ICANN's organizational jurisdiction, and 
that will be the focus of the next subgroup call at 1300 UTC tomorrow. So its 
intent in that regard may be clearer within the next 24 hours.

Setting aside the jurisdiction issue, I would like to see the GNSO statement on 
this express some concern that the amount budgeted for impartial outside legal 
assistance may be inadequate, and to endorse  a lower threshold for making 
additional funds available if recommended by the Legal Committee - and 
certainly not the "extraordinary circumstances" standard proposed in the 
current draft.

One thought I have is that the expenditure ceiling might be loosened somewhat 
by advocating that up to an additional $700,000 be available to be allocated (a 
50% increase beyond the $1.4M now budgeted) solely upon a finding by the Legal 
Committee that such expenditure is justified, with a higher standard in place 
for requests that would take spending beyond that. That might prove a 
reasonable balance between wanting to assure adequate resources while  keeping 
spending under control.

Best to all,
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: Paul McGrady [mailto:policy@xxxxxxxxxxxxxxx]
Sent: Tuesday, September 20, 2016 4:34 PM
To: Phil Corwin; 'James M. Bladel'; 'GNSO Council List'
Subject: RE: [council] RE: Draft Motion - GNSO Validation of 
CCWG-Accountability Budget Request

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> 
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Phil Corwin
Sent: Monday, September 19, 2016 5:40 PM
To: James M. Bladel <jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>>; GNSO 
Council List <council@xxxxxxxxxxxxxx<mailto: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-23aug16-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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