[CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

[Jorge.Cancio at bakom.admin.ch]

Dear Pedro, dear Steve, dear all,

First of all, let me thank Pedro for trying to „operationalize“ the elements of what was a consensus GAC input from the GAC agreed upon in Dublin.

I would like to share some thoughts with all of you which were important elements of the discussion within the GAC and which perhaps may help to forge a common understanding of the ccwg on this very delicate issue.

First, there may be some degree of understanding that we want to avoid placing the ICANN Board in a position where it would be obliged to arbitrate between divergent views or interests of parts of an advisory committee, which in the case of the GAC would be sovereign governments. This thought could be considered as a relevant element in supporting an express mention of the consensus support requirement, whenever the Board has to enter into a mutually accepted procedure with an advisory committee.

I feel it was also considered important, within the GAC, to spell this principle in horizontal terms, applicable to all advisory committees in such a situation, and not to single out the GAC as this could be perceived as a sign of mistrust.
On the other hand, it was also considered as important that provision should be made that Advisory Committees should retain a certain degree of autonomy in establishing their particular definition of consensus. As we know, there is no “one size fits all” definition of consensus and some flexibility must be provided to adapt to the different circumstances and characteristics of each Advisory Committee. In any case, I feel it is understood that whatever specific definition of consensus is adopted, majority voting is ruled out by definition to mean “consensus”.

At the same time, we also know that consensus does not mean unanimity and should not be construed as allowing a single or absolutely negligible minority within an Advisory Committee to recklessly block a consensus advice as this would amount to a risk of capture of the named Advisory Committee, and would prevent it from properly exercising its advisory role.
In what specifically affects the GAC, and mindful of the ATRT2 report and the recommendations of the Board-GAC Recommendation Implementation Working Group, the GAC also discussed and agreed to consider it as another important element in the equation, that a 2/3 majority vote would need to be required from the Board to turn down a consensus GAC advice on public policy matters.

In my view, this would guarantee a thoughtful consideration by the Board of public policy advice supported by GAC consensus within the new framework, bearing in mind that the special historical role of the US on these matters will be missing, and advice from the GAC in my opinion amounts or should amount to a significant element of the multistakeholder model.

In addition, this would place the GAC in equal terms with proposals submitted by GNSO and ccNSO supported by supermajorities in those supporting organizations.

I hope these personal thoughts are helpful for progressing in this very delicate discussion

Best regards

Jorge

Von: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] Im Auftrag von Steve DelBianco
Gesendet: Montag, 9. November 2015 15:49
An: Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br>; accountability-cross-community at icann.org
Betreff: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Thank-you Pedro for picking-up this discussion after Dublin.

Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from all Advisory Committees.  What about a general Advisory Committee amendment along these lines, without singling-out the GAC?

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee.  Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice.   That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s advice.

I believe that a new +2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection.  As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.

Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin.   I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin)  This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again).

Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there.

Best regards,
Steve


From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br<mailto:pedro.ivo at itamaraty.gov.br>>
Date: Monday, November 9, 2015 at 11:28 AM
To: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear CCWG colleagues,

As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:


"The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered:

·         The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee;

·         The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus;

·         The value the Board attributes to receiving consensus advice;

·         The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold

for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.

In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability."

With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws.

ARTICLE XI: ADVISORY COMMITTEES
Section 1. GENERAL
“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board.
Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.”

ARTICLE XI: ADVISORY COMMITTEES
Section 2. SPECIFIC ADVISORY COMMITTEES
Item 1.j
“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 GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. 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.”

Kind regards,

Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
T: +55 61 2030-6609

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