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

Wed Dec 16 17:21:30 UTC 2015

Thank you for your email, Kavouss.  I initially thought it was a
non-answer, but then I realized that it was a diplomatic answer.  I don't
spend much time in diplomatic circles, so I initially didn't get it.

I believe that what I am reading (and translating from diplomatic terms to
New Yorkese (a more "in-your-face" dialect)) is this:  "We do not need to
change that part of the proposed Bylaw because it does introduce a
mandatory voting requirement where none existed before, and that is
intentional (and not a drafting error)."

I suppose any further discussion, or a frank statement of the intent and
effect, would draw this issue out of the shadows, and thus jeopardize its
inclusion in the final Proposal. Unfortunately, I think we need to draw
this issue out of the shadows.

Frankly, within my group, I had been arguing that this was a mere drafting
error, that no new voting requirement was being introduced, and that all
that was happening here was a change from majority to 2/3 but that the
Board's process was otherwise unchanged.  I thought those reading more into
were catastrophizing.  Now I am not so sure.

The GNSO Council will be discussing this in 24 hours.  IPC is discussing it
in less than 2 hours.  It's important to clarify what our proposal says.  I
expect that IPC's reaction, for one, is going to be significantly more
negative if this Proposal intends to change the Board's process and not
just the decisional threshold (which is raising enough trouble on its own,
thank you very much).

Indeed, I think it undermines the credibility of the entire proposal if
there are significant changes hidden in the language and not explained even
in the most detailed explanation in the Annexes.  Bad drafting is something
we can solve in implementation.  "Bad concepts" and "Trojan horses" are
not.  We need to solve them now.

I hope to have something to report to my constituency soon.  For better or
worse.

Greg Shatan
[President, IPC, but writing in my personal capacity]

On Wed, Dec 16, 2015 at 9:51 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> 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
>>>>>
>>>>> _______________________________________________
>>>>> Accountability-Cross-Community mailing list
>>>>> Accountability-Cross-Community at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>
>>>>>
>>>> _______________________________________________
>>>> Accountability-Cross-Community mailing list
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>>>>
>>>>
>>>
>
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