[CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?

[Greg Shatan]

All,

In reviewing the Third Draft Proposal, concerns have been raised within my
constituency that the proposed Bylaw does more than replace an existing
"majority" threshold with a new "2/3" threshold.  The concern is that the
proposed Bylaw introduces a "mandatory vote" by the Board in order to
reject GAC Advice where the Bylaws do not currently require a Board vote.
Further, there appears to be a concern that, if the Board does not take a
vote and affirmatively reject a piece of GAC advice, then that GAC advice
becomes binding on ICANN.

These concerns stem from a reading of the draft Bylaw (new language in red):


The advice of the Governmental Advisory Committee on public policy matters
shall be duly taken into account, both in the formulation and adoption of
policies. In the event that the ICANN Board determines to take an action
that is not consistent with the Governmental Advisory Committee advice, it
shall so inform the Committee and state the reasons why it decided not to
follow that advice. Any Governmental Advisory Committee advice approved by
a full Governmental Advisory Committee consensus, understood to mean the
practice of adopting decisions by general agreement in the absence of any
formal objection, may only be rejected by a vote of two-thirds of the
Board, and tThe Governmental Advisory Committee and the ICANN Board will
then try, in good faith and in a timely and efficient manner, to find a
mutually acceptable solution.


​The current language of the Bylaw makes no reference to voting, only to
the far more ambiguous "determines to take an action."  As such, adding a
reference to a vote can be seen to add a new element (aside from the
introduction of a 2/3 threshold): the element of a bylaws-mandated vote.
Similarly, the statement that GAC Advice can only be rejected by a vote of
the Board can be read to state that if no such vote is taken (or if such
vote is taken and fails) that the GAC Advice is then something ICANN is
bound to follow.

I don't think either of these things were intended by the CCWG.  Whether
they are misreadings of our draft language or unintended consequences of
the drafting, this concern is troubling.  If it is the intent of some of
those drafting this language to force a vote where none is currently
required, then that is even more troubling.

I would appreciate some clarification on these matters that I can bring
back to my group.

I would also appreciate the CCWG considering a change in language to remove
this ambiguity which is currently causing great consternation in my group.

I suggest the language below.  This m
ore closely track
​s​
the language of the existing bylaw and avoid the use of the term "vote,"
with its potential unintended consequences:

The advice of the Governmental Advisory Committee on public policy matters
shall be duly taken into account, both in the formulation and adoption of
policies. In the event that the ICANN Board determines to take an action
that is not consistent with the Governmental Advisory Committee advice, it
shall so inform the Committee and state the reasons why it decided not to
follow that advice.
​
If the Board
​
determines to take an action that is not consistent with
Governmental Advisory Committee advice approved by a full Governmental
Advisory Committee consensus, understood to mean the practice of adopting
decisions by general agreement in the absence of any formal objection,
​
​such determination must be supported by
two-thirds of the Board, and the Governmental Advisory Committee and
the ICANN Board will then try, in good faith and in a timely and efficient
manner, to find a mutually acceptable solution.
​


I would appreciate your thoughts on this point and the revised language.
Thank you.

Greg
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