In its informal background paper "Applying the Highest Standard of Corporate Governance" (August 2011) the European Commission proposes to revise the procedures of ICANNs Nominating Committee (NomCom). Instead of the confidential treatment of applicants the EU calls for an open publication of "a full list of candidates". Is this a good idea? I don't think so.
The rationale behind the EU proposal is "to improve confidence on the selection procedure" and "to avoid conflict of interests". But the proposed improvement is based on a wrong assumption, it ignores the real practice and it could become counterproductive.
The NomCom selects eight voting members of the ICANN Board in a staggered process over a period of three years. Seven Board members are elected by the Supporting Organizations and the At Large Advisory Committee. The Board is completed by the CEO and a couple of non-voting liaisons to advisory committees.
The NomCom emerged in 2002 as a substitute for an election process. Originally that board was designed for 19 voting members: Nine coming from the three supporting organizations, nine from At Large and the CEO. An At Large election test took place in 2000 for five directors but it produced mixed results. An "At Large Study Group" (ALSG) chaired by the former Swedish prime minister Carl Bildt analyzed the strengths and weaknesses of an open election process in a community with a potential of hundreds of millions of Internet users (and voters). In 2002 — as part of its reform process — the ICANN Board decided to reduce the number of voting members in the board from 19 to 15. It established the NomCom as an independent body and gave the NomCom a right to select half of the board members. As in open and free election, everybody can apply for an ICANN leadership position, but the final decision is now in the hands of the independent NomCom which represents the various constituencies of ICANN.
The NomCom is totally independent. It communicates with the broader community but it takes no orders neither from the CEO or the Chair of the Board nor from other ICANN Bodies. It has 15 voting members. Each ICANN constituency can send a pre-determined number of voting members to the NomCom. The At Large Advisory Committee (ALAC) sends for instance five voting members — that is one third of the voting power — to the NomCom. As an unwritten rule, NomCom voting members serve no longer than two years. The NomCom Chair, his/her Associate and Adviser are non-voting members. This avoids the emergence of "cliques" or "voting blocks" in the NomCom.
All this gives the NomCom a high degree of legitimacy. The NomCom represents indeed the various members of the ICANN family in a rather balanced way which constitutes a high degree of legitimacy. One can put it this way: The ICANN community itself — via its delegates to the NomCom — selects in a bottom up process its own leadership. This is a good example for a functioning bottom up participatory democracy. Probably the NomCom is the most democratic element in the whole ICANN architecture.
One basic principle of the NomComs is the confidentially of its work. To be more precise: The NomCom treats the personal data of the applicants in a confidential way. But with regard to its policies, procedures and practices the NomCom it as open and transparent as possible. The principle of confidentiality protects primarily the candidate and gives the NomCom enough independent decision making power for the final selection.
ICANNs board of directors should include not only world class experts, the board as a whole has to have also a broad mix of multidisciplinary expertise to meet the broad challenges which come with the development of the Internet and the management of its critical resources as the DNS. The board needs experts from technology, management, finances, law, policy, security, just to flag a view needed skills.
One of the benefits of the NomCom selection process is that it allows to rebalances imbalances which can occur from the election of Board members via the SOs or ACs. One example: If the sitting board has already four lawyers there is no need to select another lawyer even if a candidate with the legal expertise is extremely well qualified. But if there is no lawyer in the board, the NomCom has a chance to find a world class lawyer to fill such a skill gap.
As mentioned above the principle of confidentiality protects the candidate. In an open election process candidates fight against each other and at the end of the election there are winners and losers. The NomCom procedure does not know losers. If nobody knows that somebody has applied, nobody will treat this person as a loser is she/he is not selected. And as described above, the final selection is determined by a lot of criteria, which include also gender and age balance, balance between Internet pioneers and newcomers or outsiders and others.
With other words, if a very well qualified candidate is not selected, it does not mean that she/he is not fit for the job. She/he does not fit into the concrete board mix of the year. The next year this can be different because the rotation principle leads to a permanent re-composition of the board. There were some well qualified ICANN directors, who did not fit into the mix in her/his first application year, but made it the other year. Once again: The principle of confidentiality protects a candidate against potential damages of her/his reputation. It is not a principle which hides or promotes conspiracy.
Part of the "Statement of Interest" (SOI) which candidates have to deliver is also a clear statement with potential conflicts of interests. And this element has certainly played an important role in the final selection procedure in every NomCom since 2002.
The NomCom attracts every year around 80 applications from all over the world. And the quality of the candidates is growing. Since two years the so-called "World Cup Approach" was used by the NomCom to reduce the pool of candidates gradually to find out the best people. In the final pool — the so-called semifinal — we had about a dozen remaining candidates and each of them would be an excellent ICANN director. Only after a very careful discussion of the various combinations and how a certain "plate" would fit into the sitting board, the 15 voting members made their final decision.
If the principle of confidentiality would be removed this would change the nature of the NomCom process. As a consequence one would have to go back to elections with all the problems and uncertainties which have been analyzed by the Bildt-Group in 2001.
If the EU proposal would be implemented the risk is high 1. that it would discourage the application of high qualified candidates who fear to loose and to damage their reputation; 2. that it would stimulate aggressive public campaigning of and fighting among candidates; 3. it would promote extensive lobbying towards individual NomCom members, including hidden efforts to buy votes.
Since 2002 about 25 ICANN directors were selected by the NomCom. I do not know one single case where we had a "conflict of interest" problem. The cases where such a conflict emerged were with directors who made its way into the board via the supporting organizations and the ALAC. Insofar one can ask the question: "What is broken with the NomCom?". And if it isn´t broken, don´t fix it!
By Wolfgang Kleinwächter, Professor for Internet Policy and Regulation at the University of Aarhus. Since 2011 he has been a member of the GNSO Council.
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