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The Proposed Change is Bad Governance and Does Not Work

  • To: comments-bylaws-amend-gac-advice-15aug14@xxxxxxxxx
  • Subject: The Proposed Change is Bad Governance and Does Not Work
  • From: Daniel Karrenberg <daniel.karrenberg@xxxxxxxx>
  • Date: Thu, 04 Sep 2014 23:09:44 +0200

Dear ICANN board, Esteemed Internet Governance Community,

The proposed language is ineffective and therefore bad governance. Even
if it were effective it would be bad governance because the board of a
company should not need a supermajority to reject a motion or proposal
by anyone. Any action by a board needs agreement of at least a majority.

First: I am not a lawyer and I do not even play one on TV. But I do have
some hands-on experience with corporate governance in several countries
including the United States. In the light of this experience I wonder
what material effect the change could possibly have. Even looking very
hard I cannot see any. Here is why: assume the GAC "recommends" that
ICANN does something, "A", that requires a simple majority of the board
to authorise. Let us further assume that a majority of the board
disagrees with doing "A". So a motion to do "A" does not pass and ICANN
will consequently not do "A". Let us further assume that less than 2/3
of the board wish to displease the GAC, so a motion to tell the GAC "we
decided not to do A" will not pass. So the effect is that "A" is not
done but the GAC is not formally told so. What is the material change to
the present situation in terms of what ICANN does? As an exercise
consider the situation where the GAC "recommends" not to do "A", but a
simple majority of the board passes a resolution to do it.

I would really appreciate an evaluation of this by ICANN legal staff
before the comment period closes.

Second: The fact that this does not materially change the authority of
the board is good. In any organisation the board ultimately decides what
gets done and board members take collective and individual
responsibility for their decisions. Since the board is responsible, it
should not allow anyone else to make decisions other than by delegation
of authority.

Third: In case the intention of the change is that ICANN does whatever
the GAC recommends unless 2/3 of the board are against it, I must
seriously question whether this would be proper corporate governance. I
would like to see a thorough analysis of who would be responsible for
such decisions and the associated actions and whether this can in fact
be codified in bylaws under the laws of California.

Still puzzled and speaking only for myself, yours

Daniel Karrenberg

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