Purpose: This Public Comment seeks community input on the CCWG-Accountability Work Stream 2 draft recommendations [PDF, 596 KB] on Guidelines for standards of conduct presumed to be in good faith associated with exercising removal of individual Directors of the ICANN Board (Guidelines for Good Faith or GGF). These draft recommendations were developed by the CCWG-Accountability as required by the final report of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability, Work Stream 1).
Current Status: The CCWG-Accountability reviewed these draft recommendations at its 22 February 2017 plenary meeting and approved their publication to gather public comments.
Next Steps: Following the public comment period the inputs will be analyzed by the CCWG-Accountability WS2 who will consider amending its recommendations in light of the comments received and will publish a report on the results of the public consultation. If significant changes are required as a result of the public consultation the CCWG-Accountability WS2 may opt to have a second public consultation on the amended recommendations. If there are no significant changes required, the CCWG-Accountability WS2 will forward the final recommendations on improving ICANN’s Transparency to its Chartering Organizations for approval and then to the ICANN Board for consideration and adoption.
Section I: Description and Explanation
Recommendation 4 of the final report of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) includes a process by which the Empowered Community or the nominating SO or AC can remove a voting director of the ICANN Board. It further stipulates that if those parties who undertake to remove a director using this process are sued by that director, that ICANN will indemnify those parties subject to a set of conditions which include acting in good faith.
It is in this context that Recommendation 4 required that:
- Guidelines for standards of conduct that will be presumed to be in good faith (for example, conducting reasonable due diligence as to the truthfulness of a statement) will be developed in Work Stream 2.
These Guidelines, as developed by the CCWG-Accountability Work Stream 2 (WS2) and reviewed by ICANN’s Legal Department, are meant to provide a frame of reference for SO’s or AC’s in developing their individual detailed processes for removing individual voting directors of the ICANN Board which would allow them to meet the good faith requirements for indemnity in such cases.
As part of its standard processes the CCWG-Accountability WS2 seeks public input on all its major recommendations.
Section II: Background
The accountability requirement to remove a voting director of the ICANN Board has been present in the CCWG-Accountability’s recommendations since the public consultation on its first proposal in May 2015. The details of how this could be accomplished varied while the CCWG-Accountability continued to develop its accountability model. Late in 2015 it was agreed that the accountability model would be based on the Empowered Community acting as a sole designator.
Once the Empowered Community approach had been selected the CCWG-Accountability proceeded with detailing how the various powers could be used. In developing the detailed process for removing a director, representatives of the SO and AC communities became concerned that the director being considered for removal could sue the SO’s or AC’s representatives personally, which would have a major chilling effect on the use of this power. To mitigate this, it was agreed that ICANN would indemnify those parties seeking to remove a director if this director sued them for this action, subject to a set of conditions. One of these conditions was that those parties seeking to remove the director had to act in good faith.
Because of the workload and timing requirements for the Internet Assigned Numbers Authority (IANA) Transition the CCWG-Accountability had to move the development of Guidelines for Good Faith (GGF) to the Work Stream 2 (WS2) effort.
The requirement to develop these guidelines was not included in Recommendation 12 of the CCWG-Accountability’s final report for Work Stream 1 (WS1), as were the other topics for WS2, due to an omission. However, as noted above this recommendation was included in Annex 4 of the CCWG-Accountability’s final report (WS1) which was approved by the CCWG-Accountability’s Chartering Organizations as well as the ICANN Board at its 10 March 2016 meeting. This requirement was added to the WS2 list of topics as part of the development of the revised ICANN Bylaws, Section 27.1, which were adopted by the ICANN Board on 27 May 2016.
Section III: Relevant Resources
- CCWG-Accountability Work Stream 2 - Draft recommendations on Guidelines for standards of conduct presumed to be in good faith associated with exercising removal of individual Directors of the ICANN Board
- CCWG-Accountability Charter - https://community.icann.org/display/acctcrosscomm/Charter
- CCWG-Accountability Work Stream 1 – Final recommendations Annex 4 - https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726520/Annex%2004%20-%20FINAL-Revised.pdf
- CCWG-Accountability Work Stream 1 – Final recommendations Annex 12 - https://community.icann.org/pages/viewpage.action?pageId=58723827
- CCWG-Accountability Work Stream 1 – May 2015 Public Consultation - https://community.icann.org/pages/viewpage.action?pageId=52897394