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

[Alan Greenberg]

Greg, you say that the current Bylaws do not 
reference voting. The current wording 
(https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j) 
is "In the event that the ICANN Board determines 
to take an action that is not consistent with the 
Governmental Advisory Committee advice..."

How else is the Board able to formally decide on 
anything other than by voting?

Alan

At 16/12/2015 03:09 AM, Greg Shatan 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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