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

Wed Nov 11 14:10:55 UTC 2015

Dear all,

First of all let me join the many others that have thanked and supported Pedro’s attempt to operationalize the GAC communique from Dublin. It is the best text and attempt to find a compromise that we’ve seen so far. Two comments before talking about the substance:

-          First, the Dublin GAC Communiqué is based on unanimous consensus – there was no objection to it in Dublin. It would therefore be self-contradictory for CCWG to impose ST18 while rejecting the proposals from the GAC communiqué, which is the result of the very consensus ST18 is trying to preserve.

-          Second, simply ignoring and rejecting this proposal without trying to find a compromise would send a very negative signal to all the countries participating to the GAC, which remains the most diverse body in ICANN. Saying the community should proceed without taking into account GAC’s comments is irresponsible and diminishes the credibility of ICANN.

In the many rationale that we’ve had regarding Stress Test 18 (risk of governments’ capture, stability, transparency, etc.) I the one from the document Fadi shared with us in Dublin is the clearest.  In point 7 of the document, it is said that the goal of ST18 is to “reaffirm in Bylaws current requirements of Board/GAC consultation on consensus advice” so that the board “gives GAC’s consensus advice special consideration”. There is two ways to do that: a negative way (saying the current obligation of the board to find a mutually acceptable solution only applies to consensus advice) and a positive way (saying it would take a 2/3 majority of the board to reject consensus advice, versus simple majority for hypothetical non consensus advice if GAC was moving from that practice in the future).
Pedro’s proposal does exactly that: preserving in bylaws the special consideration the board should give to consensus advice from GAC, by both restricting the obligation to find mutually agreed solution to consensus advice and by demanding a 2/3 majority of the board to reject such advice.

Plus, if no such solution can be found, the board still has the last word in the current bylaws, which would not change:

“ k. If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities. “

I think one of the remaining issues is the definition of consensus. Nobody here has the intention to define consensus as simple majority. Current practice in GAC is no objection, current practice in ALAC is supermajority. Generally speaking, consensus means no or few objections or super majority, as opposed to simple majority. So a solution could be to modify the Section 1 of Article 11 as follows, restricting definition of consensus to the above mentioned defitions.
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: no objection, few objections or supermajority.”

Ghislain de Salins (France).
________________________________
De : accountability-cross-community-bounces at icann.org [accountability-cross-community-bounces at icann.org] de la part de Pedro Ivo Ferraz da Silva [pedro.ivo at itamaraty.gov.br]
Envoyé : mercredi 11 novembre 2015 14:43
À : Greg Shatan; Avri Doria
Cc : accountability-cross-community at icann.org
Objet : [***] [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion

Dear Greg, Avri,

Thanks for your comments.

I believe some of the concerns below have been answered by Jorge, so I don't want to repeat arguments here.

I would just like to comment on the Greg's statements that "the proposed suggestion essentially turns the concerns of the rest of the community on its head" and that  "Under this formulation, the GAC gets far more than it has under the current bylaw".

The suggested language for the bylaws preserves the advisory nature of the GAC with regards to the ICANN Board. It actually restricts it by imposing the requirement of the advice having to be reached based on consensus - an imposition that Brazil and other countries have expressed to be against but for the sake of compromise have decided not to object.

With regards to raising to 2/3 majority the rejection threshold, this is by no means an attempt to turn the GAC into a "co-equal (if not more than equal) policymaker with the GNSO (and ccNSO)". It is rather a disposition targeted at recognizing the importance of public policy considerations within ICANN's decision-making system.

Regards,

Pedro

________________________________
De: accountability-cross-community-bounces at icann.org [accountability-cross-community-bounces at icann.org] em nome de Greg Shatan [gregshatanipc at gmail.com]
Enviado: quarta-feira, 11 de novembro de 2015 5:04
Para: Avri Doria
Cc: accountability-cross-community at icann.org
Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

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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