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

Wed Dec 16 18:53:13 UTC 2015

Kavouss,

Thank you.  Your kind words are most appreciated.  I must say as well that
I am continually impressed by your level of engagement and the value of
your contributions, which are always most appreciated.

Best regards,

Greg

On Wed, Dec 16, 2015 at 1:50 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> 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
>>>>>>>>
>>>>>>>> _______________________________________________
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>>>>>>>> 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
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>>>>>>>
>>>>>>>
>>>>>>
>>>>
>>>
>>
>
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