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

[Greg Shatan]

At the risk of being impolitic, it seems to me that the proposed suggestion
essentially turns the concerns of the rest of the community on its head.
Under this formulation, the GAC gets far more than it has under the current
bylaw, and the concerns of the rest of the community are barely met, if at
all.  The first time the GAC provides advice using "majority consensus" (a
term sadly coined in the Executive Summary), we'll know that we got nothing
for our bargain.

As Avri touches on, the new proposed paragraph significantly misstates the
current obligations of the Board.  In addition to the misstatement Avri
cites, the paragraph attempts to codify the informal descriptor "due
deference" which is actually not what the current bylaws says. Furthermore,
the idea that if the Board decides not to follow GAC advice, the Bylaw
"requires finding mutually agreed solutions for implementation of that
advice" -- *the very advice the Board has decided not to follow*, is
clearly incorrect -- the Board's only obligation is to try in good faith to
find a mutually acceptable solution.  A requirement to "try" is not a
requirement to "find" and a "mutually acceptable solution" need not (and
probably does not) involve implementation of the GAC advice (except in a
revised fashion acceptable to the Board).

Others have commented on the "ask" for a 2/3 requirement to reject advice,
and I'll only say I agree with them.  This is entirely consistent with the
idea that the GAC is a co-equal (if not more than equal) policymaker with
the GNSO (and ccNSO), which in turn is entirely inconsistent with the
fundamental mechanics of ICANN and the "balance of power' among SO/ACs
which the Executive Summary boldly says we are not changing.

I have nothing but respect for the unique and critical role that the GAC
plays at ICANN, and respect for the GAC members as well, so please do not
see this as disrespect for either.  It is, however, a fairly complete
rejection of this particular proposal, as stated.  I may revisit it to see
what can be salvaged, but I've run out of steam for the night, given that
this is hour 20 since I awoke for our Tuesday meeting.

Greg

On Tue, Nov 10, 2015 at 10:36 PM, Avri Doria <avri at acm.org> wrote:

>
>
> On 09-Nov-15 11:28, Pedro Ivo Ferraz da Silva wrote:
>
> */_if not followed, requires finding mutually agreed solutions for
> implementation of that advice_/*
>
> The current bylaws state:
>
> > 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 am wondering whether the the words 'try , in good faith and in a
> timely and efficient manner, ' were accidentally dropped from the newly
> proposed formulation.
>
> Form my perspective there is a world of difference between requiring a
> genuine attempt to find a mutually acceptable solution and the
> requirement for finding one.
>
> In one case if the attempt fails, the Board is still free to make a  to
> reject the advice.  In the later, the Board seems bound to find a
> mutually agreed upon solution without the abilty to reject the advice if
> no such solution can be found.
>
> Can someone clarify this for me?  I accept that having missed a few
> meeting lately, my understanding may be lagging, but that is my reason
> for returning to the proposed and existing language.
>
> thanks
>
> avri
>
>
>
>
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