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

Wed Nov 11 10:08:18 UTC 2015

Dear Greg

I hope the points I just made on Avri's question may help to clarify that aspect.

As to your email I wonder whether you could elaborate why you think the change to a 2/3 threshhold to reject AC consensus advice would change the underlying role of that AC.

I feel that, to the contrary, the AC, in our case the GAC, would retain its current underlying role: to provide advice on certain issues as defined in the Bylaws.

The change from 50+1 to 2/3 does not change that advisory role. It just would require a 16,6% more of Board members to reject a consensus advice.

regards

Jorge

Von meinem iPhone gesendet

Am 11.11.2015 um 04:05 schrieb Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>:

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<mailto: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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