Improving Institutional Confidence
ICANN - Sydney
24 June 2009

>>PAUL TWOMEY:  Are we ready?  Okay.  Good afternoon, ladies and
gentlemen and welcome to the workshop session and information session
on improving institutional confidence.  Part of my contribution to that
will be to turn off my mobile phones so that we don't have interference.

And the purpose today is to go through some recommendations from the
staff to the board.  And I should stress very strongly that the things
we'll talk about today are not formal board positions, have not been
considered yet by the board.  So this is just an update.

To give you that further background, remind you that the President's
Strategy Committee was established in 2006 to advise the President and
the board on strategic issues facing ICANN.  And during the midterm
review of the Joint Project Agreement, Peter Dengate Thrush asked the
PSC to work with the community develop the transition framework or how
to address some of the issues raised out of the JPA midterm review.

And the PSC conducted public meetings around the world and around
three online consultations and successive drafts of these documents and
it delivered a draft implementation plan on improving institutional
confidence to the board at Mexico City in March 2009.  

And at that meeting, the board resolved that the ICANN staff should
take away these recommendations and come back with some suggestions for
implementation for the board itself to consider.

Members of the PSC, there are some members in the room, particularly
my co-chair, Peter Dengate Thrush; Yrjö who is in the back, perhaps
stand from -- the ambassador from Finland; Marilyn Cade, who I don't
think is here.  Pierre Dandjinou, is Pierre here?  Hi, Pierre.  Pierre
is here as well.  Raimundo Beca, another member of the board.

So let's move on quickly.  The board thanked its work and posted the
report for 60 days public comment, and -- directed the staff to
evaluate implementation of the proposals and reports.  After the 60-day
public comment period was finished, the staff recommendations were
published on the 1st of June in a document called "Improving
Institutional Confidence:  The Way Forward."  And there is the link in
the document.  And the board has not yet, as I said, considered this
proposal, to be quite clear.

So I would like to basically give you a summary of the status of the
recommendations.  And the recommendations were quite -- fairly lengthy
in number, but they break into basically four main items.  There is a
series of items which are -- which we would -- the staff recommendation
is to commend the work on the PSC recommendations in relevant places in
the ICANN structure, including board committees.  In other words, the
recommendations either were directed to sorts of things that were
already underway in reviews or were specific things which will be well-
addressed in the existing board subcommittee process.

And the second area was on internationalization.  And the board's
instructions here were very, very clear.  And I want to re-emphasize
them.  It was to direct staff to continue conversations on additional
legal presences with authorities in Belgium -- actually, this is what
our recommendation is -- with authorities in Belgium and Switzerland
and report back to the community with a detailed analysis of risks and
benefits and that the board take no action without further community
consultations.  

And quite specifically, the board should maintain its headquarters in
the United States and as the PSC said in Marina del Rey.

The third area of recommendations is that the work -- the board should
work with the Government Advisory Committee and the community in a
fully consultative process to publicly consider and improve the GAC's
role within ICANN.  That process of discussion has already started here
in this meeting.

And the fourth one is consider bylaw changes to create two new board
accountability mechanisms, and I think that's a very important
proposition.

So let's go to these ones in detail.  So we'll talk about the
commending recommendations.  You'll see number references here for
recommendations.  These number references are from the PSC's most
recent report, so they go back to that.

So let's look at these things that the staff is saying.  Let's commend
these to existing board committees or otherwise.  One is the task --
we're suggesting the board task the Board Governance Committee with
working with the leadership of the Supporting Organizations and
Advisory Committees to establish guidance on disclosing and handling
conflicts of interest across the Supporting Organizations and ACs, that
we task the Structural Improvements Committee with further improvements
in coordination and potentially increased cross-participation between
Supporting Organizations and Advisory Committees, especially during the
issue-identification stage of new policy initiatives.  We are
suggesting the board task the Board Governance Committee and the CEO
with working together to develop a staff code of conduct.  We are
recommending that the board approve the public participation committee,
recommending process and substantive improvements to the board for
implementation by staff and others regarding executive summaries. 
That's a very long way of saying that.  I think we managed to get
ourselves quite confused in the English there, but asking the PSC to
recommend processes for executive summaries for documents.

And approve consideration by the public participation committee and
possible review against the published translation policy.  So, again,
asking the PSC to look at recommendations around translations as it
fits within the existing work being done in the PSC on translation.

That the finance committee continue with and provide more detail on
strategic and operating planning and reporting systems, including
dashboard and other tools.  Indeed, I think leading up to this meeting
here in Sydney, the finance committee has released more detail along
those lines, especially these areas of expense accountability groups
within the way in which the budget is structured.

On this -- so that's the first set of recommendations.  A lot of them
are process, procedural recommendations.  As we pointed out, they
actually have a natural home already with what's going on in ICANN.  So
we're recommending that the board send these issues to those committees
or, rather, for implementation.

The second area then is on the question of internationalization, which
has been a -- very much an argued and discussed topic in front of the
PSC, and we recognize it has issues and concerns for some people.

The staff recommendation is that the board recommend that staff
continue conversations with authorities in jurisdictions such as
Belgium and Switzerland which have the body of law for international
profit organization, the body and legal entity, and report back with a
detailed analysis of risks and benefits to the board and community.

Now, the update at this meeting to the board is that conversations
have commenced with both the Kingdom of Belgium and the Swiss
Federation, but those conversations have only just started.  I expect
there will be some further conversations.  This is a relatively new
area for both -- this area of international profit organization is a
new area of law in both countries, relatively new area of law.  So I
think both sides are approaching the conversation carefully.

And we will keep reporting back to the board and through the board to
the community on updates on those conversations.  So, basically, the
work has commenced but it may take some time.  And there will be no
steps will be taken without full consideration.

And the staff does recommend that the board should resolve to maintain
ICANN's headquarters in the United States.

The third area was the role of the Governmental Advisory Committee. 
And the staff recommendation is that the board, either as a whole or
potentially through its Structural Improvements Committee -- but we'll
leave that to the chairman of the board really to consider, we think --
convening a dialogue particularly among the leadership of the GAC and
the board itself but also then looking for leadership of other
Supporting Organizations and Advisory Committees to publicly review the
GAC's roles in ICANN.  

We think it's important that there is a discussion between the board
and the GAC about the GAC role with ICANN; but we also think that as
transparency requires, that there needs to be a dialogue more broadly
which would include the other parts of the ICANN community, the ICANN
structures.

Secondly to that, the board should consider translation and
interpretation of documents and other work to continue to support
participation and working practices at the GAC.  And I suppose we note
there has been an ongoing discussion about secretariat supports and
other things in the GAC, but we think this is important for
participation and translation.

That the board should consider finding better ways for governments to
be informed about ICANN and meet with the ICANN community and as part
of that interact with the board.  We expect that part of what will come
up in the discussion between the board and the GAC itself some of the
ideas that have already floated, at least in consultation, is having
additional meetings, having meetings where GAC members potentially
could interact with board members during board retreats.  There is a
number of potential topics that have been discussed.  But, again, I
think it's something which we're recommending the chair of the board
should be directly taking up with the GAC itself and see what potential
items are of appeal.

We're also suggesting that the board should approve the extension of
travel support to GAC members from the least-developed countries and
support for more remote participation at GAC meetings.  And I think
there has been some work done on that already for this meeting here in
Sydney.

Let's move to the final set of recommendations, and I think these ones
are probably the most -- or could be -- all of these are significant
but I think these two are certainly very significant.

There was quite a discussion within the whole PSC process about
accountability and ICANN accountability.  And what became clear, I
think, to the PSC members throughout that is accountability is a little
bit like beauty:  It is in the eyes of the beholder.  And trying to
determine from one group to the next or one individual to the next
exactly what they meant by "accountability" was, frankly, difficult. 
Often there were conversations.  

Indeed, I think the former representative of the government of Canada
in the GAC nearly two years ago, I think, the question was posed "What
do you mean by accountability?"  And the GAC itself came back with the
leadership of Canada on some principles.  We had this throughout the
whole community, and people tended to have slightly different views.

What did emerge as some potentially additional mechanisms for
accountability were two things:  Basically, tell me there is a way in
which if the board makes a decision, I can get that decision
reconsidered or changed.  That's basically what it came down to.

One of those was, if you like, an internal political mechanism, that
there would be a way in which, as the recommendation put forward, if
the board was to make a resolution which the community broadly is very
unhappy with, does the community have a way in which it can tell the
board, "You need to reconsider your decision, we think you got it
wrong"?

And so the proposal which came from the PSC and then the proposal
coming from staff in consequence is that we establish a special
mechanism for the community to require the board to re-examine a board
decision, invoked by two-thirds majority vote of two-thirds of the
councils of all Supporting Organizations and two-thirds of the members
of the Advisory Committees.  And I'll come to that shortly.

The second one has been the discussion around ICANN independent review
processes.  And the recommendation -- before we get to the second one,
there is a third one which is not here.  The PSC also in its early work
had recommendations from some members of the community that there
should be a way in which the community could spill the board and
replace the board, a little bit in the way an annual general meeting
can actually spill the directors of a public company or, for that
matter, a private company.

And there was a lot of work done by the PSC on possible mechanisms
whereby the board could be basically turned over and replaced.  The
committee kept that report -- kept that recommendation in its report
but, I think, found as time progressed there was less and less
enthusiasm from members of the community for that option.  And
interestingly, people in the community began to refer to it as the
nuclear option.  Never a good description of anything.

And so the staff recommendation to the board is actually that the
board should not act on that recommendation at this stage, that there
really was not the degree of support for it as might had been two years
ago in the beginning of the process and that the concern was about --
it would be exceptionally destabilizing and the benefit -- the cost
potentially would outweigh any potential benefit.

It is still a standing recommendation.  It could be considered in the
future by the board, but I think at the moment the staff recommendation
is that the board not proceed with that particular recommendation.

The third area was the ability to actually -- less, if you like, a
political way, mobilize people in the community to say to the board,
"We should change" and more from an individual affected party stance,
How do I get to -- the board of ICANN has made a decision and this
really affects me and I don't think they should have made that
decision.  How do I get some redress?  How do I get them to reconsider
it?

What's been proposed in the staff work is that there should be
establishment of a new -- new or newly -- that's interesting -- new or
newly -- English is different in Australia -- newly constituted
independent review tribunal with powers to review the exercise of
decision-making powers of the ICANN board under three general rubrics
of fairness, fidelity and rationality.  I shall come to that in some
detail.

Let's look at the first one.  The bylaws recommendation has been
posted.  Have you got the document?  Sorry.  Just getting a document on
this.

We decided it was best not to put the exact wording up on the slide
but perhaps we should have.  The recommendation as it has been posted
is that there be an amendment to Article 4, Section 5 of the ICANN
bylaws that we should read quite specifically.  Section 5 would be a
new section and it would say, "Special ICANN community vote for board
to re-examine a board decision."  And Subsection 1 would be, "Within 90
days of a board resolution or the conclusion of the next ICANN
international meeting, whichever is the longer," so ensuring that there
is at least one international public meeting together, the ICANN
community can require the board to re-examine the resolution through
two-thirds majority vote of two-thirds of the councils of Supporting
Organizations and two-thirds of the members of the Advisory Committees.

Secondly, for the Government Advisory Committee, it will be sufficient
to meet the two-thirds rule to have a consensus statement for all
members present at a physical meeting.  

And, thirdly, the ICANN board shall re-examine in good faith the
resolution at its next meeting after the necessary votes have been
taken.

So that's the proposed from the staff to the board language that we
would propose should be put up for bylaw consideration as is required
under the bylaws that will also go to further public consultation.

The second area -- before we get to the second area, second proposal,
one of the principles that's legally important here, which has to be
managed, is that in most jurisdictions and certainly in the Anglo-Saxon
jurisdictions, a not-for-profit or for-profit corporation are bound by
the corporation's law.  And the corporation's law in each jurisdiction
is actually very clear that the final body for policy decision-making
for the entity has to be the board.  It is a key point of board
accountability, indeed in places like North America who has been
strengthened by things like Sarbanes-Oxley in response to Enron and
such other activities.

This is legally important because while we're talking about an
accountability mechanism -- accountability mechanisms for the community
to say, you know, "I want that reconsidered, please change your
decision," legally these things have to be structured in a way which is
not seen to take away the final decision-making power of the board
because that then would be in breach of the corporation's codes.

So please keep that in mind as we go through these two
recommendations.  They will have wording which says, Then the board
will reconsider its position.  And that's been our strong legal advice.

The second one is a change to the bylaws to establish independent
review tribunal.  We have a range of review mechanisms now.  We have
the independent -- we have the ombudsman.  We have the independent --
sorry, we have the board Reconsideration Committee, and we have an
independent review panel.

In addition -- and this is very important -- we remain an organization
accountable under law.  

And I think during my period as President and CEO, we have defended
14, 15, 18 court cases, at least that many.  In one year, we had seven
going at one time.

And members of the ICANN community traditionally have actually
utilized the courts, not just the United States, also in Canada.  But
they've utilized the courts as a mechanism of trying to hold ICANN
decisions accountable.

Nothing in this changes that.  So ICANN obviously is an organization
that operates under the law and will remain accountable under those
courts.  We are also very importantly accountable under the Californian
code and the Californian Corporation's Code has special provisions for
non-profit organizations which empowers the attorney general of
California with certain investigative powers and other things.  So
there is also a range of accountabilities there.

But let's come back to the special accountabilities that we built in
over time in the ICANN bylaws for, if you like, clearer sort of
community-based additional bylaws and to -- if I can channel Peter
Dengate Thrush, I mean, the emphasis here certainly from the PSC -- and
I expect you will find it from the board -- is not for ICANN to be less
accountable but for ICANN to be more accountable and more importantly
be more accountable to its global ICANN community.  We think that's
very important.

So the first of the provisions is that there is an ombudsman. 
Secondly, there's the Reconsideration Committee of the board.  And the
third one is the independent review panel.

There will be an additional staff recommendation on Friday that both
the ombudsman and the independent review -- sorry, the board review --
sorry, board reconsideration process should both be up for review under
the rolling review mechanisms that ICANN has in place.  So we have
under the bylaws the requirement that all organs inside ICANN need to
be reviewed every three years.  We think these two particular organs
need to be opened up for that review.

The ombudsman process, I think, has been quite satisfactory, worked
quite well.  I think you will find the chairman of the board has been
on the public record several times to say that he thinks the
Reconsideration Committee of the board is not now well-structured and
needs to be reconsidered.  It is too narrow and is actually too
difficult to get things through that process.  So we think that's an
important need to do that review.

The third area has been the independent review panel, which is
presently being utilized by ICM in action against ICANN on a particular
decision.  And that panel is -- has utilized -- utilizing the American
Bar Association's international center for dispute resolution, and
there are three arbitrators selected by the process.  And Mike Palage
in one of the meetings recently pointed out that process of --
reconfirmed the selection of how those panel members -- one is selected
by one party, one is selected by the other party.  And then the two
arbitrators select a third.  A fairly standard procedure in
international arbitration.

However, the PSC and the staff advice -- taking away the PSC
consideration, the staff, partly faced with frankly timing constraints
on what had gone forward, after consultation with quite a number of
people in the community and engaging of a series of lawyers in
different countries, has put forward a proposal for consideration that
there be that -- the independent review panel be expanded to be an
independent review tribunal.  We are just using the word "tribunal."  I
think already we have received comments from European board members
that the word "tribunal" doesn't necessarily translate well in French
and Spanish, has some historical overtones.  We may want to think about
the language, but, nevertheless, we will use the word "tribunal" for
today's purposes.

That it would be a standing panel.  This was, I think, a key thing
that came back in the consultations.  It would be a standing panel of
internationally recognized relevant technical experts and
internationally recognized jurists.  Because of the special nature of
ICANN as a technical coordination body, people who would be involved in
any sort of review should not only be lawyers potentially also senior
technical people.

And that this group should be appointed, say, for a term of five
years, so that people could actually point to a bench, if you like --
and I know there are some who are uncomfortable with that concept, but
I think most of what we'd heard people were asking for was something
that visible.  They were asking for something that they could point to
and they could sort of point to the people individually.

Importantly -- and this is not in the documentation, but has already
been received this week as feedback -- and I think the staff
recommendation on Friday would support this -- that it should be clear
that the membership should be selected by the independent dispute
resolution provider in consultation, for instance, with key technical
bodies.  

In other words, not by the ICANN board or staff.

So the membership of that should be -- should be selected through some
sort of third party.  Obviously, there would be criteria sort of laid
out.  

The sort of criteria I think that were -- has been already discussed
by some board members would be to ensure that there was -- that these
people came from a diversity of legal traditions.  So it wouldn't be
just, for instance, just common law; that they would come from a
diversity of legal traditions.

And that they would be the sort of people who would be sort of ex-
judges of appellate-type courts.  

So just as examples, a former judge of the European Court of Justice,
a former judge of the -- you know, the United States Supreme Court, a
former judge of the highest court in Brazil.  I'm sort of going through
this.

But to give you some flavor of what the recommendation would say.

The second area is, under what grounds somebody could go to this
tribunal and say, "Please reconsider the board decision."

And again, taking advice from a number of law firms in different parts
of the world and trying to find some way of describing basic principles
in more simple language, less legalistic language.  

What the staff is recommending to the board at the moment is that the
tribunal could review board decisions under the rubrics of fairness,
fidelity, and rationality.  And let me just go through what those mean.

Fairness, to use an American expression of the same thing, would be
due process.  That what has been followed is a process or a fairness
that has integrity in the process of decision-making.

Fidelity is that the organization has been faithful to the scope and
objects of the power being exercised.  So that ICANN's bylaws, its
mission statement, that the organization has been faithful to that, it
has not gone beyond that.  It is sometimes referred under the Latin
phrase of ultra vires -- beyond powers -- that the organization hasn't
gone beyond its powers of scope.  

I think in ICANN that's often -- you know, "mission creep" is
sometimes the phrase that's used.  That's the position.  

And the third one is that the decision is rational, the rationality. 
The decision should be reviewable if they lack sufficient coagency to
command basic levels of assent from those who are affected.  In other
words, that the decision looks like it's reasonable and you can
understand how somebody came to that decision.  The decision hasn't
been made in a way that it just looks -- you know, just as my daughter
would say, "That's just weird."  It's trying to make it clear that
there has to be some degree of rationality.

And I'll come back to that.

So these basic -- these principles were drawn by the counsel we took
advice from of the experience of, in particular, some jurisdictions in
North America, Europe, some jurisdictions in Asia-Pacific.  And we
didn't take counsel from, say, Latin America, but we think some
commonalities generally between Latin America and the central European
legal jurisdictions.  

And these sort of principles are sometimes referred to in places like
France or Australia or I think also in Canada as "administrative law,"
but they come under those sort of general headings.  And it's the
principles normally applied to ministers or statutory authorities or
anybody who is exercising a devolved power about how to make the
decision.

And if I can just read, then, what the recommendation was in terms --
well, yes.  

The further thing, of course, I said before, is that the
recommendation is also that that would then come back for the board to -
- you know, this tribunal would make a decision and then make that
recommendation for the board to take -- to reconsider their decision in
the light of the following points.

Again, I wanted to stress this point that the common element in both
these accountability mechanisms is that the corporations law does
require that the board has to be the final decision-maker, and
therefore, it's -- but there are ways in which the board itself could
even pass resolutions saying that it will accept the outcome of the
decision made by the other -- by the tribunal.

So the proposed language for bylaw consideration, at least as it is on
Monday and may well change by Friday to pick up some of these points --
but on Monday it would read that article IV, Section 3(1) --
Subsections (1), (2) and (3) of the bylaws be amended to read:  

"(1) In addition to the reconsideration process described in Section 2
of this article, ICANN shall have in place a separate process for
independent third-party review of ICANN actions.  'Action' for this
purpose includes a decision to act by the board and a failure to act by
the board when ICANN has the power to act.

So importantly, this is also a mechanism not only to say the board has
done something wrong, but it might also be a mechanism which says --
let's take a security and stability issue -- the board has failed to
act on something they should act on as a security and stability
requirement.  There is a mechanism here to say -- take an appeal to
say, "You should request the board to actually on this issue."

"(2) Any person materially affected by an ICANN action may submit a
request for independent review of the decision or action.  The grounds
on which review which may be requested are:  (a) that the applicant was
a person that ICANN should have known was likely to be materially
affected by the ICANN action."  

So that's an important point:  That they would be a materially
affected person.  

"And the applicant" -- "one was not given a reasonable opportunity to
make a submission to ICANN before the decision was made; (2) was not
given reasonable access to the information on the basis of which ICANN
was proposing to act..  

(b) that the action was not within the scope of the authority
conferred on ICANN or was not reached in compliance with any applicable
procedures mandated by ICANN's articles of incorporation, bylaws, the
procedural provisions of ICANN's accountability and transparency
frameworks and principles or the published decisions of the ICANN board.

(c) that the action took place after the ICANN board took into account
considerations that were irrelevant, having regard to the objects of
the power being exercised and the circumstances of the matter.

(d) that the action took place after the ICANN board failed to take
into account all considerations that were relevant and necessary to be
taken into account, having regard to the objects of the power and the
circumstances of the matter.  

(e) that the action was not in good faith and that its predominant
purpose was a purpose foreign to the objects of the power being
exercised by ICANN."  That is for ulterior purpose.

"(f) that the action was not the result of a genuine consideration of
the circumstances of the particular case.

(g) that the action was wholly outside the scope of a reasonable
exercise of the power that was exercised by ICANN.  (h) that the action
was based on facts for which there was no support; 

Or (i)  That the action detrimentally interfered with the existing
rights or interests of the applicant, but was a disproportionate
exercise of the power being exercised by ICANN in that ICANN's
objective could practically and reasonably be achieved by other means
which did not have such an impact on the applicant or others."

And then 3:  "Requests for such independent review shall be referred
to an independent review tribunal consisting of a standing panel of
internationally recognized relevant technical experts as well as
internationally recognized jurists, including persons with senior
appellate judge experience.  Members should be appointed for either a
set period of five years or until they resign."

And then there's a -- that's basically the proposition.

The -- I think one of the key points here for consideration is that
the -- this is a -- this is an appeal mechanism open to any materially
affected party under a set of -- under a set of rules with an
international set of decision-makers.

I think that does, in many respects, not only introduce an
accountability, but it's also an accountability open to existing
members of the ICANN community globally or people who are outside the
community but could be materially affected, and I think does broaden
the accountability.

A couple of finishing comments about this.  

The President's Strategy Committee called for a special panel to
examine this issue and its recommendations.  At staff level, we had a
number of conversations with potential people in the community who --
or people in the community who might know people in the community who
might be interested in such a panel, and got confronted, frankly, with
some of the difficulties of people's timetables and when people were
available and times.  

So for the purposes of at least taking the issue forward, the staff
decision was to put forward the research -- some of the research it had
already received in terms of recommendations for the board to
potentially consider on Friday, but clearly this is a very significant
area.  Clearly we do not expect that we've got -- we've got this
wording perfect, by any means, and we would expect there to be further -
- obviously further consultation on it.  So it's sort of key that it's
sort of put up as a framework for consideration.  And as I said, the
board itself has not made any decision on these documents.  They are
just recommendations from staff at the moment.

A final -- just a final comment in terms of intent.  I've already been
asked this question.

The intent of the PSC was that this sort of review mechanism would be
broader than the existing independent review panel's powers.  It is the
intent of what was drafted that it be broader.  If there's
interpretations that it's not broader, then that's contrary to the
intent and that would be sort of part of the -- part of the discussions.

So perhaps I'll leave it there with the description and perhaps we'll
move to open mic.

Becky has been waiting for some time.

>>BECKY BURR: You anticipated the question that I was going to ask,
but I feel compelled to respectfully raise this issue.  The President's
Strategy Committee recommendation was that you get together a group of
experts to come up with a proposal to bring to the community.  That's
not what happened.

And I am not faulting, I'm not -- I'm not saying, you know, that we
shouldn't appreciate and value the recommendation, but to come to the
community with a proposal that is sort of put together behind closed
doors by people that the community doesn't know, notwithstanding the
request -- the advice of the PSC, and to put language up with respect
to bylaw changes without the input publicly of a group of independent
experts on this strikes me as a -- it just sort of undermines all of
the good intention behind this.

This really needs to be something that the community sees as an
independent full willingness to be accountable.  And what it looks
like, with all due respect to, is an attempt to control the way this
comes out.

Now, I'm not -- I'm not attacking.  I'm not intending to attack.  But
I do think that the mechanism by which the community considers this is
as essential and critical to the credibility of this proposal and to
the -- you know, whether we all buy into it.  

You know, I hear the stuff about California corporate law saying that
the decision has to be made by the board.  I think it's sort of --
that's sort of a made-up issue, because in a judiciary, you know,
judges, judges' panels, they're not executives.  They're not
legislators.  That kind of separation of power is true in every
circumstance.

If we had real experts in front of us putting together a proposal, we
would be able to talk about it in that way.  

And so while I want to welcome the gesture and the intention, I just
want to express my deep regret and disappointment that this opportunity
to discuss this issue, which I think is as critical to the future of
this organization as anything, has come up in this way.

>>PAUL TWOMEY:  Yeah.  I can take that criticism, and I understand the
point and I know we've had this discussion and there was a
recommendation.

I think -- I'm pleased that by having what we've put up by the 1st of
June has allowed some recon- -- some comment, and I'm -- certainly when
we come to the board consideration on Friday, as I expect, there will
be -- we need to think about the mechanisms you're talking about.  And
potentially this wording put forward is a -- is a draft that could be
considered or, you know, an input.  

It was drafted as bylaw language.  

But I think your basic point is fairly sound.  We can talk about the
timing mechanics between now and then.  

You're quite right to say that's not the intent.  I can understand
that -- I can understand the response.  I mean, it looks like control. 
It's not the attempt of control.  It was potentially an attempt to try
to map out what might be the sort of things for people who were saying,
"Well, what would this thing be like?"  

But I think that your basic proposition is still somewhat valid.  I
accept the criticism.

The -- but I hope that having got at least something put up at this
stage, we can accelerate discussion.  Clearly I think we need to
discuss it -- discuss it at the board meeting.

>>MICHAEL PALAGE:  Hello, Paul.  Mike Palage.

>>PAUL TWOMEY:  Mike.

>>MICHAEL PALAGE:  Quick question.  On Monday's welcoming ceremony,
there were numerous references to financial support from the state
government regarding Sydney's office.  And you know what a meticulous
person I am.  I went through the ICANN Web site and I couldn't find any
documents documenting that financial relationship.  Did I miss it or
are they not there?

>>PAUL TWOMEY:  I think those documents are all coming as part of that
announcement.  The premier of New South Wales made the announcement on
Monday, and part of the support for the Asia-Pacific/West Pacific
office here in Sydney and it's a contribution towards the rent of that
office.  

The documents are not posted because the documents were only finalized
just at the time of that announcement.  That's part of the way in which
they do things.

>>MICHAEL PALAGE:  And I guess as a follow-up, is -- I consider it a
positive that ICANN is looking to work with governments, other
governments.  So I guess a follow-up question would be:  If ICANN has
this relationship with the local government, is it necessarily -- why
are we looking at those other relationships with, I guess, Brussels? 
And so why can't we duplicate that into getting into these more complex
structures?  This seems to be simpler.

>>PAUL TWOMEY:  Can we -- it's a good question, but it's -- let me
clarify the principles, and the PSC did a lot of work on this
clarification.  

There is a difference between having what you and I would, in a
management sense, refer to as an office, and we have one here, we have
one in Brussels, for instance, to give two examples.

They are legally registered overseas businesses of the ICANN not-for-
profit corporation in California.  So legally, they are the ICANN not-
for-profit California.  They're not a separate company.  Okay?

And the reason -- if we were a for-profit -- I've made this point
before.  If we were a for-profit company, the laws around the world are
well integrated for that, so you could set up a subsidiary company here
and it would be its own stand-alone company and similarly there.  Not-
for-profits, it is more difficult.  Their structure is different.  The
structure for a not-for-profit in this country is quite different from
what it is in California.  

And so what we have done to date to support those offices has been
this process of registered overseas business.

So it's still the same one legal entity.  

And the PSC's recommendation, which was directed to some quite
specifically managerial issues about the ability -- for instance,
recruitment challenges, potentially issues around being able to ensure
that you could recruit people from anywhere you thought was necessary
or important for the organization, there's potentially some issues
around better handling of offshore personnel -- especially European
personnel's -- retirement issues, pension issues.  So there's a series
of practical things that went through there.

That was some of the rationale for saying, "Is there another legal
entity that would let us to do this," and hence this discussion of the
overseas -- so it's quite clear it's the legal entity -- it's not the
office, it's the legal entity might make that easier.  And that's the
reason why the President's Strategy Committee said, "Please explore
this new body, this new legal entity concept that has emerged of sort
of an international nonprofit organization."  

But, you know, reinforcing, including the staff reinforcement, is
that, you know, we're only just starting these discussions.  I'm
expecting it will take some time, and the board's made it very clear
that it wouldn't make any decision along these lines unless it comes
back with, you know, benefits and costs and --

>>MICHAEL PALAGE:  So just another follow-up question, since -- well,
I'll let Steve go.  Oh, okay.  I can keep -- thank you, Steve.

A follow-up question.  And this relates a little bit to the JPA.

Both at the midyear review, at the midyear review and then this most --
the termination, the ICANN board has announced its intention that "We
think we're done with the agreement."

There was really never any consultation with the community.

What's interesting is, you said you're going to announce this
agreement with the local state government shortly.  

When you're dealing with governments, perhaps -- I mean, is there --
does the board ever see the need to consult with the community?  It
seems like you're trying to get out of one agreement with one
government, but entering into an agreement with another one for
financial support.

I mean, does the board just think it could do that --

>>PAUL TWOMEY:  Well, I think --

>>MICHAEL PALAGE:  What's the consultation with the community? 
Because I see it lacking.

>>PAUL TWOMEY:  Well, I think consultation with community is an
important aspect, but it's not -- you don't do consultation on every
administrative business decision.

If the issues with, for instance, the New South Wales government were,
you know, quite specific about -- apart from sort of administrative
things, about the support, then potentially you might do a
consultation.  

But I think these are the sort of issues that are administrative
issues that, you know, the board considered at the time of the actual
establishment of the office that this sort of thing should be explored
quite explicitly in its decision.  

So I think the consultation mechanism for the chairman of the board to
answer, but I think on relationships with governments, et cetera, the
key points of the Governmental Advisory Committee, the policy
implications, the input on that, I think interactions on tax matters,
for instance, that we have to do with governments, on potentially
support issues, there is obviously -- there's sort of a -- you know,
there's a line you've got to draw somewhere, but if the things are very
administrative, I don't know that that is the sort of thing that you go
back to the community all the time on.

>>MICHAEL PALAGE:  Again, I would not -- when I heard it here, I was
just a little surprised.  I was, like, wow!  That was interesting.  And
I didn't see it on the ICANN Web site, so...

>>PAUL TWOMEY:  Well, I understand that, and, you know, we were a
little uncomfortable about it, but, you know, the politics of such
things tends to be that they like to have announcements that -- you
know, the premier himself announces that sort of thing.

>>MICHAEL PALAGE:  I understand.  Thank you.

>>STEVE DelBIANCO:  Thanks, Paul.  Steve DelBianco with Netchoice. 
And I didn't want to make a comment on maybe the -- I don't want to
talk about the specifics and substance of the new independent review
tribunal.  I almost called it "IRT."  God, that would be an unfortunate
acronym.  So you're right:  "Tribunal" is not the right word.  Ironic
that the Europeans don't like "tribunal."  I believe that Viviane
Reding called it that, "an independent review tribunal," first.  I
thought that's really where you got the phrase.  

>>PAUL TWOMEY: No.  

>>STEVE DelBIANCO: So I don't want to talk about the specifics and
substance, but rather just process and how the pieces fit together.  So
I'll read one quote.  

The U.S. government says, "That the goal of the JPA process was to
transition the coordination of DNS responsibilities previously
performed by the U.S. government to the private sector, so as to enable
industry leadership and bottom-up policymaking."  

That's no surprise.  That's exactly our culture here.

So that was about the word "transition."  

And then since you've taken the helm at ICANN, you know, five years
ago, you've been all about finishing the transition.  "Finish it
already," I've heard you say.

And then in April of 2008, the U.S. government did that sort of
midterm review -- I think Mike just mentioned it -- and said, "There
are a few things ICANN needs to work on to really be fit for
transition."

And on that same day, ICANN launches the Improving Institutional
Confidence initiative, the initiative about which this meeting was
launched because the midterm review of the JPA -- and the PSC has done
a great job working on it, but the last year and a half have been
remedying the fitness for transition that was pointed out.

Now, at the Mexico City meeting, a number of us raised real concerns
about, as you say, the nuclear option and looking for more
implementation details, and all of us called for a better
accountability mechanism that would replace the JPA once it went away.

And in the three months since Mexico City, there has obviously been
progress.  A lot of us in industry -- especially AT&T and Becky -- have
worked hard on putting some meat on those bones.  Your staff has come
back with a plan.  But with just three months left till the termination
of the JPA, you cannot nor -- you -- and you should not attempt to
finish this entire plan and get it approved and locked and loaded by
the end of September.

So the question for you is just simply this:  Given the linkage in the
events I just articulated -- the linkage between the JPA, the midterm
review, the IIC and the plan -- what do you see in the timing of just
letting the JPA expire and the ongoing work on developing a transition
framework along the lines of the independent review tribunal?

>>PAUL TWOMEY:  Well, I think, first of all, one of the key things
that came out of the -- and, you know, Peter called for the PSC, which
was already doing work along these sort of grounds.  If you'll
remember, the PSC has been in place for longer than midterm, so it was
actually --

>>STEVE DelBIANCO:  But the IIC was born on the day of the day of the
midterm review. 

>>PAUL TWOMEY:  Well, that phraseology was picked up on it, but some
of this stuff was previous consultations, so there was existing
consultations prior to that.  

And I think that it has had a focus towards trying to identify through
-- with a lot of consultation with the community about what issues
should be addressed.

I think where we are now is that there's a -- you know, there's a
flagging of a map going forward.  And, you know, I take -- I take
Becky's comment fully on board and understand completely why she's
saying it and have sympathy for what she's saying.  So, you know,
there's pathways forward.

I think the key thing is to say, you know, in the last -- you know, I
think one of the things that's developed even more so in the dialogue
in the last 12 months on the issues of accountability and the Joint
Project Agreement is this issue that ICANN is an organization being
accountable to its global community.

That being more accountable, not less accountable.

And that it's accountable to its community.  

That does not mean it's not being accountable under its other
mechanisms, and the existing legal mechanisms, but accountable to its
community.  And I think part of the purpose here is to flag and show in
some detail, potentially, ways in which that can be achieved.

In terms of tick-the-box approaches to having things by September, you
know, I think there's a number of processes underway, one of which of
course is the U.S. Department of Commerce notice of inquiry process. 
So I think we'll have to see what comes -- what comes out of that.

I think what is clear -- what I think is clear is that the
organization and the community continues to show its ability to go in
the right direction and that it clearly listens to these things and
puts forward proposals and has a mechanism for continuing to do that,
all right?  And I think that's part of what these recommendations are
for.

It is up to the board to listen to whether -- I mean, I want to make
the point again, you know, I am an outgoing CEO and this is a staff
recommendation to the board, and it's not the board's work here. 
Right?  

So, you know, what the board may decide on Friday is different.

But I do think these sorts of appeal mechanisms, you know, from having
a lot of conversations with the community, have -- you know, that
people say, "Well, that's the sort of thing -- you know, that looks
good.  That's sort of heading in the right direction."  And I think
that's part of the purpose.  

And I think, frankly, coming to Becky's line, part of the reason we as
staff said "Let's put that wording up" was to show there is a heading
towards a direction.

>>STEVE DelBIANCO:  May I, though?

>>PAUL TWOMEY:  Uh-huh.

>>STEVE DelBIANCO:  Just the notion, that, hey, ICANN is inherently
accountable to its stakeholders.  It's baked into the model.  Which is
paraphrasing a bit.  And if that were entirely true and satisfactory,
then the community wouldn't have been clamoring for accountability
mechanisms such as that, and the PSC -- I realize the board hasn't
vetted it yet and the full community hasn't commented on it yet, but
I'll wager this is going to be seen as something that's a great idea,
far superior to the nuclear option, and if we're saying we need this
kind of an accountability mechanism, then we're implicitly disagreeing
with the statement that ICANN is somehow a sufficiently and fully and
inherently accountable organization.  It can't be both.  If it were all
accountable, as it is today, we wouldn't need to move to that.

And the need to move to that, I suspect, sometimes is driven by the
timetables that are established with the JPA, the midterms, and the
expirations.

In other words, I feel a sort of pressure associated with the
expiration of the JPA, and that pressure has helped to bring about the
IIC.  It wouldn't have existed without it.  And the pressure of the
deadlines and the things we've been saying at meetings has brought
about the work so far.

But what happens to that pressure?  Does it all disappear on September
30th, if the agreement simply falls away?

>>PAUL TWOMEY:  Well, I'm not going to make observations about the
JPA, you know, details concerning the JPA, but I think the issue about
pressure and bringing pressure -- I can tell you, from having served on
the board for as long as I have, pressures come from many places.  Can
I just mention one?  Can I just say one word?  "Luxembourg."

[Laughter]

>>PAUL TWOMEY:  Right?  Pressure can come from many places, right?  So
I don't think we should -- and I think as a community, we should think
about this very carefully, right?

Part of being accountable -- in my eyes, at least -- is being
accountable to bring that pressure to bear yourself, and outsourcing
that to some other mechanism, you know, like the United States
government -- "Can you do this for me on my behalf" -- is probably not
as much as the community itself saying --

>>STEVE DelBIANCO:  Not a choice the community would make, but it's
the status quo, so the pressure comes from there because that's how we
were born.

>>PAUL TWOMEY:  Okay.  Let's leave it at that, perhaps and take --

>>DIAGNE NDEYE: Thank you.  I am Mrs. Diagne.  I am from Senegal and I
am a member of the GAC, and my question is about the GAC.  I just
frankly want to know if ICANN doesn't want to look another way to work
with government because first is the representativity of the GAC.  If
they can (inaudible) that even you have number of states who are a
member of the GAC, if you talk about participation, you would have a
problem.  And also, I think the problem comes also from the technical
issue because yesterday on the GAC session with the board, one of the
GAC members said that if ICANN interpret like that, it was that the GAC
work is not relevant for ICANN -- it's my interpretation of this --
because we did not participate to the technical coordination of the
Internet.

My question is:  Why doesn't ICANN try to work directly from
government who are interested on it -- because some governments are not
interested in Internet -- or to work with organization of the
government at the regional level or to work with the U.N. organization.
That's my question.

>>PAUL TWOMEY:  Okay.  Well, I think you've -- there's a series of
questions there, one of how the GAC operates, and the -- and the
ongoing interaction of the GAC with ICANN and the ICANN board, I think
is -- quite specifically, we're saying, is the topic.

If I can share my experience of 10 years with the GAC, and perhaps
even beyond the GAC, if I can share 10 years of my experience with
Internet issues in international fora, what I have witnessed is
governments getting more interested in the Internet as the Internet
becomes an issue domestically.  So no governments had real much
interest in wanting to attend anything related to the Internet until
the Internet became important at home.  

And so if you actually look at the membership of the GAC at the time,
it actually reflects the degree to which the Internet's become
important at home.

I mean, and that's normal resource allocation inside a government,
right?  

So I'm sure 10 years ago in Senegal -- although Senegal is from one of
the leading ICT countries in Africa, but, you know, even 10 years ago
in Senegal, I expect -- or 15 years ago -- I have to be careful because
your president's been quite a leading figure in this.  

Okay.  Let me take another country that's there.  Other countries, you
know, you can tell when they've got more -- when they've got more
interest, they've attended.

We have been very conscious of the roles of regional organizations. 
Indeed, we have a memorandum of understanding of both of the African
Telecommunications Union and with the East Asian Commission of the
United Nations Anne-Rachel and others, as you know, work closely with
those groups.

We have one similarly -- I see (saying name) in the back of the room
who helped negotiate one with the Pacific Islands Telecommunications
Association.  We do try to work at least at staff levels with those
associations and those regional bodies.

The key -- the key point will be, though, how public policy advice is
given to the ICANN board and how public policy advice is incorporated
in the issues identification more broadly in the community.

And I think that's where we need to talk about the GAC interaction and
taking your questions to that actual dialogue.  

Some of the recommendations here are actually potentially about more
resources and more assistance for in long-distance interaction.  I
think that is important.

Can I make just the following final observation on your question? 
Institutions have a history, and that history tends to follow, in some
respects, the technical and economic aspects on which the institutions
are built.

One of the aspects of both, say, the international airline system and
the international telephone communication system is that they were
built on economics of a large amount of government regulation and
government funding.  And as a consequence, their institutions tend to
reflect that history.

The Internet's history is actually very different.  It has a history
which comes from, interestingly, one government's funding but very much
a research area, university area and then on to a business area and
largely supported, I think, in some respects by the rise of private
venture capital so that a large amount of the Internet comes from
private activity and comes from private capital.

So its institutions tend to reflect that those parties have to be
involved in the decision-making.  

That doesn't mean that the other models are invalid, but I do think it
is hard to retrofit one historical institution's experience on top of
another historical experience.  I think that's part of the challenge.

I recognize particularly in Africa that we have a communications
challenge about making that point, and I also recognize that in Africa
the international organizations play a big role and important role in
capacity-helping and assistance.  I think implicit behind your
question, I recognize that point.  Perhaps I'd say, let's incorporate
all those things inside the GAC discussion and take your points into
the GAC discussion.

>>DIAGNE NDEYE:  I also want to point out that even if the Internet
was created by one nation, even if it was created by the industry,
right now Internet becomes a public good.  And I think that ICANN must
show this use of the Internet because we cannot just -- we are not in a
historical way in history so we cannot just stop on these, you know --
these facts that Internet is for that.  Internet is becoming a public
good, so I think it is ICANN who has to do things and try to help those
who are not in the Internet community to be in.

And I think in our country, even if we have some private sector, our
private sector are not so powerful.  And I think if the relevant
community comes from the government, I think we cannot have the same
(inaudible) in developed countries and in developing countries.

>>PAUL TWOMEY:  That's very valid, very valid.

>> STEFANO TRUMPY:  Okay, Paul.  I tried to ask you an exercise in
definitions for non-lawyers, let's say.  We have a keyword.  In
elaborating on the future of ICANN is this magic word "accountability."
In some circles, there has been a split dividing internal
accountability from external accountability.  So internal
accountability is quite easy, so verify that the Internet is making the
interest of all those that participate in the ICANN activities in DNS
management.

"Accountability" is something that's not clear at least to me.  But in
some circles, some intend to say that ICANN during the MOU and JPA has
been accountable to U.S. government.

And following this, someone says that if JPA ends, then we have to
replace the mechanism and to make ICANN accountable to a multitude of
governments.  

Here the positions are varying.  And position of my government, for
example, is that we do not need that ICANN is accountable to
governments.

But in the measures that you mentioned before, so the second legal
presence of ICANN, the independent tribunal and maybe other things
should be the issues that might demonstrate -- have to demonstrate that
ICANN is accountable also externally, let's say, not only to the
internal community.

So I would like that you confirm or explain better what is your view
about "external accountability."  Thank you.

>>PAUL TWOMEY:  Stefano, as an Italian, you know beauty abounds but
each person's version of beauty, I think, tends to differ.  I think
"accountability" is a very difficult word to find a universal
definition for.

But I think one of the things I've picked up in the many discussions
in the sense that accountability is that if you make a mistake, there
is somebody I can go to.  I think if i sort of boil down, that there
seems to be if you make a mistake or you do something, you do something
that hurts me, I got somebody else I can go to and ask for redress.

And I frankly don't think that we will produce a single instrument of
accountability.  Indeed, if you look at the principles of
accountability management we presently have, I think it is 27 pages
long with several different accountability expressions, quite a lot of
them.  I said we could even have them under law.

To come to your particular question of the role of a single government
and other forms, I think -- yes, we all know it is a controversial
issue and people have different perspectives on it.  I do think this
mechanism, though, of -- is gaining some traction of the idea that
ICANN in its decisions is accountable and that members -- in the sense
you can go there and say, Please reverse this.  Please, you have made a
mistake.  I'm trying to find more mechanisms for that.

I have found -- and I'm sensitive to Becky's criticism because I think
in some respects it is quite well-founded.  But I think in our trying
to at least put this concept out, trying to show people what is
potentially feasible that you could potentially use some form of
judicial mechanism.  

And to do it, to come to your point, Steve, to try to do this in some
time frame of this year, right?  So at least the concept is up there
clearly within that time frame.

Whether that's going to be sufficient for others -- I know, Stefano,
just talking to members of some of the central European governments, I
mean, I've heard that what's important is I've got service -- I can say
to a minister, "I got somewhere to go to if they make a mistake" or "if
they do something that's affecting us, we have somewhere to go" and
that's sort of a good test.

>>JONATHON ZUCK:  Yes, hello, Paul.  Good to see you.  Jonathon Zuck
from the Association for Competitive Technology.  I, too, have a series
of questions but don't expect them to be answered really.  It is sort
of a -- they are going to sound rhetorical, but I don't mean for them
to be.  

I'm a programmer by trade, and I sort of think about things that way. 
And the more that I read this document and respond to the public
consultation surrounding the document, et cetera, I feel like what's
missing most is context.  And because the document is called "Improving
Institutional Confidence" seems a concession that there is, in fact, a
lack of confidence in the institution somewhere by someone about
something and that it, in fact, is important to improve that confidence
in the institution.

And so as a programmer, the way I would approach this problem is to
say, well, whose confidence is lacking?  And where are the areas in
which they lack confidence?  And how do we know that they lack that
confidence?  What are the stakes of the lack of that confidence?  In
other words, why is it important that they feel confidence in the
institution?

What is the time frame by which we need to obtain confidence?  What
are the ramifications for not attaining some increased degree of
confidence?  And how will we know if we have?

Is it just a feeling?  Right?  I read the thing and I'm responding to
it.  We try to respond to all these consultations, and I wonder, am I
just sort of answering whether I think these things will be a good
idea?  I don't know.  What are the measures of confidence?  Is it a
survey?  Is it more countries signing up -- signing contracts to be
ccTLDs instead of sort of staying in the periphery?  

I mean, I know my members would feel more confident about the future
of ICANN if they felt that governments were more confident about the
role of ICANN and the private-sector-led nature of it.  There is a lot
of people's confidence we're after.  I don't know how we're measuring
it.

I don't know what we're doing about the possibility of failing and
what's next if we don't increase that confidence.  So those -- it is
the context of this that, I think, is sometimes missing.

>>PAUL TWOMEY:  I think what you have done is put your hand up to be
on the next process we run anything along these lines.  I think this is
one of the difficulties we have of in our community of these sort of
issues in the sense that they run for long periods of time.  So without
being -- sounding flippant, if you go back into that part of the Web
site and back to the hearings, a lot of your questions there are a lot
of answers to in submissions made to the notice of inquiry process, in
public consultation documents that have been posted.  

They may not have been pulled out in the way you're saying.  I think
those of us that have been on the journey have sort of been absorbed
along the way.

The question of measurements is an interesting one.

>>JONATHON ZUCK:  As a programmer, I would never get away with telling
my client that the requirements analysis is somewhat buried in our
initial correspondence?  Right?  

It feels like there out to be a document that outlines those things,
ask those questions and tells us what the answers are and contains some
ramifications for failure to increase the confidence that we've agreed
in the abstract is important.

>>PAUL TWOMEY:  Mm-hmm.

I just want to make sure we are not getting any online remote questions.

>> HUGO ORTEGA:  My name is Hugo Ortega.  I'm from a company called
Tega Tech Australia, so a business based in Sydney.  We operate in
Australia, New Zealand and we have also opened up an office in Europe.  

Internet is vital to our growth.  Domain name registration is vital to
our growth and how we interact with that.

I'm new to the whole ICANN thing, so this is something very new to me.
However, in a few dinners I had recently, in a few meetings with folks,
I've started to be aware that the JPA itself as it was in existence and
coming into termination now is actually a turning point coming up which
could affect my business here, Australia globally and how it
interoperates with each other.  So I'm looking at my business against
my business overseas.

"Accountability," again, is a word -- I don't want to sound
rhetorical.  I don't want to bring it up as the main feature of my
question.  However, ICANN's accountability is probably a benefit that I
can see, in my humble opinion, without been hugely involved with these
meetings by the JPA existing.  

By it terminating, there is a fine line as to is it going to be
replaced by something as substantial?  Because currently the JPA, as it
stands from the little online documents I have read, is something
that's substantial.  It is embracing.  It sort of sits there and hovers
around and protects.

Moving forward in small business -- from a small business point of
view, what sort of community involvement will you assure ourselves in
actually being able to negotiate with ICANN and ensure that ICANN
doesn't make its own decisions?  I've heard of, for example, already
ICANN making decisions and not having informed the community with
regards to New South Wales government just today alone.  

It is not substantial because those sort of things don't have to be
brought up -- as you said, very validly, you can't make every decision
in front of the community because it would be just futile.

But how can we ensure -- for example, in my eyes, that was a pretty
substantial decision in that the government is now involved --
Australian local government is involved directly with ICANN now.  And,
yet, community had little say.  

So how do we -- after JPA is gone, how do we as the private enterprise
which helped make the Internet what it is today exert our force on the
accountability of ICANN?

>>PAUL TWOMEY:  Well, I think the basic proposition is around
transparency and also probably more importantly that we have
participation.  And that's the opportunity that's available.  

I mean, just take your own particular circumstance.  That could be
participation simply through watching many public consultation
processes and just watching the Web site and being more involved.

The second one, frankly, for a small business is that your government
is in the Government Advisory Committee.  And so a natural way in which
a voice can be raised back up on an issue that might affect Australian
small businesses is Brandon there to your left and that consultation.  

There is also a business constituency inside ICANN from which you can
participate in.

If you actually read very carefully the Joint Project Agreement
terminology, I don't actually know where you go in the JPA because the
JPA is a very narrow instrument in what it says is the role between
ICANN and the United States government.

But I think the key -- I do think the key thing is, one,
participation; two, if concerned, who is my spokesperson inside this
organization?  Three -- and this is very important, and I think this is
part of where we get confused about ICANN.  ICANN's decision-making is
overwhelmingly, except for sort of administrative -- more narrow
administrative things in its own operations, is bottom-up
participatory.  

So it is not the sort of organization that you can trust -- actually
the board can make a whole series of decisions that affect you.  Even
you take new gTLDs, which is the thing that has created a lot of
interest around the world, it has basically a ten-year history.  The
present round has got a four-year history.  There is a lot of
discussion, and so I think that's important.

And then the third one, I suppose what I'm saying is potentially some
of these review tribunal ideas are even after the event, you have got
some way you can go just like you would go to a court and say, "Hang
on.  This is affecting me even though I wasn't inside this ICANN
community of 20,000 people around the world but you're hurting me,
you're affecting me.  I want some action on that."

>> HUGO ORTEGA:  So part of my question is, does ICANN see itself --
when the JPA expires, is that moving forward a reduction, therefore, in
accountability?

>>PAUL TWOMEY:  No.  We think it is much improved.  I think, frankly,
if I was to give a narrow definition, I think your voice of
accountability on ICANN through the JPA is nil.  It is essentially nil.
The JPA is not an accountability mechanism for you.  It is not an
accountability even -- the United States' own description of the Joint
Project Agreement is that it is not an accountability instrument.  

The history of it is that it was a -- at least in my eyes, it has been
a process of advice and guidance about how the community built itself
as a structured community.  It has been very valuable advice and
guidance.  And we expect advice and guidance from the United States
government and other governments to continue.

But as a point of accountability for you about the actions of ICANN,
it's nothing.  It's more these sorts of participation issues and
potential third-party dispute resolution mechanisms I think which will
improve it.

>> HUGO ORTEGA:  All right.  Thank you.

>>PAUL TWOMEY:  That's a good set of questions.  The questions you're
asking are the questions of as we look forward as an organization and
the community growing, you affect more people in the global economy,
right?  And so people are going to -- how do I have a voice in this or
how do I protect myself is a really good question.

We will make this the last question just to keep timing-wise.  Is that
right?

>> JEFF BRUEGGEMAN:  Thanks.  Jeff Brueggeman from AT&T.  This may
follow on to Jonathon's question about context.  During the
institutional confidence proceedings, there had been a number of
individual proposals set forth and issues identified.  In AT&T's most
recent set of comments, we really tried to look at the issue of
accountability and organizational stability more holistically.

And by making specific recommendations to the board on two proposals,
my question would be, what are the implications for the other hundreds
of pages of comments that have been filed on other recommendations?  

And then to give two specific examples, we had proposed that having a
more detailed charter whereby ICANN would lay out its responsibilities
to the community and also a more detailed set of procedural guidelines
would enable a more robust type of review by an independent panel
because you would have a more structured framework for what -- ICANN's
decision making.  

So the question would be -- by picking out two specific proposals, it
calls into question the rest of the institutional confidence
proceeding.  And what are your views on a more holistic plan?

>>PAUL TWOMEY:  Jeff, I think we also saw your submission partly
coming into the Joint Project Agreement and other types of discussions
as well.  So there is an attempt at separation here.  But as you're
pointing out, this is really context -- a bleeding of context which I
accept.

I think also, frankly, the point is well made.  We tried to address
the specific things that were from the PSC recommendations, but we --
you're making a point which we probably should -- obviously, the board
has to consider.  And if it does anything, they have to go through the
consultation -- that's required anyway -- to try to pick up the sorts
of other -- other flavors of things that were put forward and see if
they fit into this, would be a very valuable thing for us to do.  I
think that's very valuable input.

We will make this the last one, Bertrand.

>>BERTRAND DE LA CHAPELLE:  Few quick points.  You discussed the issue
of the JPA not being an oversight mechanism, and I think there is a
broad understanding now that this is a case.  It is not an oversight
mechanism in itself.

The discussion about external and internal accountability can probably
be overcome by talking in more general terms about an accountability
framework which encompasses, as you say, several different
accountability mechanisms that can take the form of a charter as was
mentioned earlier.  That's the first point.

"Accountability framework" is probably the word that we would favor.

The second point is, as is very nicely described here, there are a
certain number of types of reviews or reconsiderations or appeals that
are different from the day-to-day, the car-bumped-into-somebody or the
redress from harm to a specific actor.

These types of things are very close to the kinds of things that an
institutional court in a government is doing, mainly conformity to the
mission or to the constitution or the bylaws or whatever charter and it
general terms, the respective due process.  So it's more the type of
appeal that is not "You have harmed me as an actor" but "You have not
been in conformity with what your normal operating procedures should
be," which leads to the concrete question.  

Apologies if in the beginning of the session you addressed it already.
My understanding both from this document regarding the independent
review tribunal and also the submission that ICANN has made in the
current review process for the ICM discussion, that whatever this
independent review tribunal comes with as a conclusion, it shouldn't be
binding for the board because this is legally contrary to California
law.

The point I want to make is there are a certain number of actors.  And
certainly France believes that any independent review tribunal that
plays this role in accountability, if it takes a decision, it should be
binding.  Then we are in a conundrum.  If it is California law that
prevents this, how do we solve this?

>>PAUL TWOMEY:  It is a good question.  Bertrand, I don't know the
situation in France.  I do know what it is in a number of the common
law countries for similar sort of review.  You talked about France. 
France is one of the jurisdictions that we actually looked at.

But in those decisions, the courts actually don't have the power to
say to the minister, "Minister, do X."  Let me finish.

What happens is that the decision -- the courts often say, it is the
court's decision that the minister should have looked at the following
things, and then the minister takes that as sort of the strong advice
and goes and does that.

So even in national jurisdictions, there are situations where the acts
are written in such a way that the courts can tell the minister what to
do, but the courts basically give strong advice to the minister.

This is an open topic.  I said in the actual response we could
potentially even have a resolution of the board, or whatever, that says
whatever the decision of this tribunal is, it will implement them.  It
just needs to be -- that could happen.  It just needs to be the board
takes the action itself.  That's all.

>>BERTRAND DE LA CHAPELLE:  I fully agree.  Thanks for this precision
because when I was using the word "binding," you actually allowed me to
make the distinction between the kind of decision that would be
revising the decision of the board and basically taking it in the place
of the board which happens sometimes in the appeals court.

Here I agree we are not talking about --

>>PAUL TWOMEY:  We are not talking about merits review.

>>BERTRAND DE LA CHAPELLE: -- invalidating the decision and maybe
giving hints.  That means there is no contradiction if the board or the
bylaws were to say the decision -- if the review tribunal says this
decision is invalidated, then the decision is invalidated, right?  Okay.

>>BECKY BURR:  I know you said it was the last question.  Companies'
boards agree to submit to binding arbitration all the time.

>>PAUL TWOMEY:  Yes, I know.  I agree.

>>BECKY BURR:  This issue seems to be sort of --

>>PAUL TWOMEY:  I agree.  We talked about it.  We think we can
structure it in a way that would say that the board -- the board makes
the decision to undertake.  It is just for clarity because what we are
not saying -- it is a subtle point but an important one.  What we're
not saying is here -- or proposing is that eight people that are chosen
by an independent dispute resolution body are the final decision makers
on decisions in ICANN.

>>BECKY BURR:  You're not proposing a different legislature or a
different executive.  I think that's very clear, and that must be the
case.

>>PAUL TWOMEY:  Yeah.

>>BECKY BURR:  But, otherwise, this issue seems like a red herring.

>>PAUL TWOMEY:  Okay.  I think you and I are on the same page frankly.

Okay.  Well, can I say thank you very much for participating today. 
As I said, this is at the moment -- was up for this sort of discussion.
It was up for public notice.  It hasn't gone to the board.  The board
hasn't made any decision.  Whatever the board does has to include
public consultation.  And if it even was on just the bylaws, it
requires a 30-day public consultation on the wording of the bylaw
changes.  So these are the sort of things that Becky mentioned were
pretty valid, and we need to think about further review engagement.

But I also think just to make the point, I think, Steve, what you and
I were discussing, the intent here is to show a path, shows a way of
thinking, shows an approach which we think is pretty important.  Thanks
very much, everybody.

[Applause]