[CCWG-ACCT] revised text for Stress Test 18

Christopher Wilkinson lists at christopherwilkinson.eu
Thu Jul 30 16:57:41 UTC 2015

With a view to our next conference call, may I suggest that it may be perceived to be inappropriate and very likely to be ineffective for CCWG to appear to try and dictate to GAC its own decision making processes.
One might also recall that ICANN is obliged to take account of appliccable 'local law' (Article 4 of the Articles of Incorporation). In which case ICANN would be ill advised to ignore advice from the jurisdiction(s) most concerned.

The NTIA requirement relates to an hypothetical 'Iinter-Governmental' solution. GAC is not an inter-governmental entity in that sense.


On 30 Jul 2015, at 17:25, Steve DelBianco <sdelbianco at netchoice.org> wrote:

> Per this morning’s CCWG call, I drafted 2 paragraphs for ST 18 (see yellow text attached and below).
> First is to remind GAC that they can define consensus.
> Second is to note dissent from 3 GAC reps and that GAC is still discussing.
>> Note that the proposed Bylaws change for Stress Test 18 does not interfere with the GAC’s method of decision-making.  If the GAC decided to adopt advice by majority voting or methods other than today’s consensus process, ICANN would still be obligated to give GAC advice due consideration: “advice shall be duly taken into account, both in the formulation and adoption of policies.”  
>> Moreover, ICANN would still have to explain why GAC advice was not followed:  “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.”
>> The only effect of this Bylaws change is to limit the kind of advice where ICANN is obligated to “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution”.  That delicate and sometimes difficult consultation requirement would only apply for GAC advice that was approved by consensus. 
>> From the beginning of ICANN through the present, the GAC has used a strong consensus rule for its decisions, “consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection.” The proposed bylaws change recognizes that GAC may amend its consensus rule to something less than “in the absence of any formal objection” while still requiring ICANN to try “to find a mutually acceptable solution.”
>> NTIA gave specific requirements for this transition, including advice that Stress Test 18 is a direct test of the requirement to avoid significant expansion of the role of governments in ICANN decision-making. The proposed Bylaws change is therefore an important part of the community’s proposal.
>> It is noted that GAC Representatives from Argentina, Brazil, and France do not support the proposed Bylaws change, and the GAC is continuing to discuss the proposal.
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