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

[Dr Eberhard W Lisse]

There are several differences between the GAC and the SOs.

Advisory Committees render advice as the name implies. And ACs have a defined area and a defined role.

SOs have a different role, but still restrict themselves on policy development only pertaining to their area, with involvement of the other SO/ACs.

So Phil is right. 

And as long as the GAC thinks it can issue policy advice on anything including who to give a gTLD to, and requiring supermajority of the Board to unbind, this can not be allowed to happen.

Though I agree that other AC's in particular the ALAC must be given even less weight. 

el
-- 
Sent from Dr Lisse's iPad mini

> On 10 Nov 2015, at 01:23, Phil Corwin <psc at vlaw-dc.com> wrote:
> 
> The GAC has been “singled out” in these accountability discussions because it is the only AC whose (consensus) advice, under  the current Bylaws, is required to be given any special consideration by the Board in a quest for a “mutually acceptable solution”. That is not based on any mistrust of the GAC but on the reality that the Bylaws already makes that distinction, which in turn is a recognition that governments have a special role and responsibilities in regard to public policy matters.
>  
> As for the rationale that the proposed Bylaws amendment “would place the GAC in equal terms with proposals submitted by GNSO and ccNSO supported by supermajorities in those supporting organizations”, Board consideration of GNSO recommendations is governed by Section 9 of Annex A of the Bylaws (“Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN. If the GNSO Council recommendation was approved by less than a GNSO Supermajority Vote, a majority vote of the Board will be sufficient to determine that such policy is not in the best interests of the ICANN community or ICANN.”, with additional provisions regarding a process to reach agreement if possible ) and of ccNSO recommendations by Section 15 of Annex B (“The Board shall adopt the ccNSO Recommendation unless by a vote of more than 66% the Board determines that such policy is not in the best interest of the ICANN community or of ICANN”, with similar additional provisions).
>  
> However, the notion that the GAC should be placed on “equal terms” with these two supporting organizations proposes a fundamental transformation of its role within ICANN, and would elevate it from an entity that renders policy advice to one that prescribes policy. I do not support such a transformation of its role, I strongly question whether a significant portion much less a majority of the CCWG supports such a fundamental change, and I believe that its adoption would likely make it impossible for the NTIA or US Congress to go along with any accountability proposal that contained it.
>  
>  
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
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>  
> "Luck is the residue of design" -- Branch Rickey
>  
> From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Paul Rosenzweig
> Sent: Monday, November 09, 2015 4:15 PM
> To: Jorge.Cancio at bakom.admin.ch; sdelbianco at netchoice.org; pedro.ivo at itamaraty.gov.br; accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
>  
> A quick question Jorge.  You write:  “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.”
>  
> Surely, though, you (and the members of the GAC) are not really saying that you stand in the same relationship to ICANN and/or the citizens of the world as the SSAC or the RSSAC or even the ALAC?  I fully agree that like should be treated alike – but the degree of power, influence, authority and capacity of the GAC members outside of the ICANN context is so fundamentally different from the other ACs that the difference in capabilities should be reflected in a difference in treatment.  It isn’t a sign of “mistrust” I think, so much as a reflection of the reality that the governments present in the GAC are very much different entities than the individuals and institutions represented on, say, the SSAC.  Just the fact that they are all “advisory committees” by itself isn’t really saying that much.  Is there something more to your view than this facial equivalence?
>  
> Regards
> Paul
>  
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
>  
>  
> From: Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch] 
> Sent: Monday, November 9, 2015 2:51 PM
> To: sdelbianco at netchoice.org; pedro.ivo at itamaraty.gov.br; accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
>  
> 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> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br>
> Date: Monday, November 9, 2015 at 11:28 AM
> To: "accountability-cross-community at icann.org" <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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