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

Kavouss Arasteh kavouss.arasteh at gmail.com
Wed Dec 16 12:47:57 UTC 2015


Grec,
You did not reply to my question?
Whose interests you are defending?
I think ,we all should to the extent practiceable be neutral in reading and
or examining a given text from Professional view points.
Having said that , we do not need to change that part . There are other
major problems in ST18.
HOWEVER, THE LANGUAGE USED CURRENTLY  IS CONCEPTUAL AND NOT THE EXACT
bylaws legal text
Regards
Kavouss


2015-12-16 9:48 GMT+01:00 Seun Ojedeji <seun.ojedeji at gmail.com>:

> Interesting you say this now, even though it was raised sometime last
> month without attention:
>
>
> http://mm.icann.org/pipermail/accountability-cross-community/2015-November/008349.html
>
> Maybe now that you've written a full page about it, will warrant
> attention. Guess it's a saying of "the more you look at one thing, the less
> you see other stuff around". The ccwg focused on consensus and I hope they
> will get that for all I care. Good luck with trying to "eat the cake and
> have it" at the same time, even though there was IMO no significant reason
> to want to eat the cake in the first place (as it's half baked).
>
> Regards
> On Dec 16, 2015 9:10 AM, "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>
>> 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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>>
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