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

Wed Dec 16 14:51:29 UTC 2015

Good Afternoon his Excellency
Tks for information.
I have replied to your conerns before" 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 15:31 GMT+01:00 Greg Shatan <gregshatanipc at gmail.com>:

> Kavouss,
>
> Your request came after I went to sleep. I responded as soon as I saw it
> after I woke up.
>
> I don't think I'm defending anybody's interests in regard to this
> particular question. I'm just trying to clarify what the Proposal is on a
> conceptual level.
>
> If the language does not clearly express the CCWG's intent, it needs to be
> changed. If it is the intent of the CCWG to institute a mandatory vote,
> that needs to be clarified as well.  This is not mentioned anywhere in the
> detailed explanation of the proposal, so if that is the intent it is not
> properly expressed.
>
> Either way, something needs to be changed.
>
> Do you have a response to the substance of my question? Is this a new
> mandatory vote or just bad drafting?
>
> Greg
>
> On Wednesday, December 16, 2015, Kavouss Arasteh <
> kavouss.arasteh at gmail.com> wrote:
>
>> 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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>>
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