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

Wed Dec 16 18:50:10 UTC 2015

Dear Grec,
Do not take it serious If I referred to your title.
This was and will the only time thatI referred or refer to that title.
Be assured that I fully respect your competence, qualification and legal
knowledge
Regards
Kavouss

2015-12-16 18:27 GMT+01:00 Greg Shatan <gregshatanipc at gmail.com>:

> One other thing -- there's no need to call me "his Excellency." I'll
> follow U.S. protocol (to the extent I know it) and accept "Mr. President."
>  For some reason, IPC has always had a "President" while all other ICANN
> groups have "Chairs." The reasons for this may be lost in the mists of
> time, though I think it's because the initial governing documents of the
> IPC were based on non-profit corporation bylaws.
>
> When I am not carrying out my official duties (e.g., when we're drinking a
> beer and you can see my tattoos, to paraphrase Justin Trudeau), you can
> call me "Greg" (or even "Grec," if you prefer).
>
> Greg
>
> On Wed, Dec 16, 2015 at 12:21 PM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
>> 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
>>>>>> Accountability-Cross-Community at icann.org
>>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>
>>>>>
>>>
>>
>
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