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

Fri Nov 13 13:21:52 UTC 2015

Dear Brett,

Plase be so kind to clarify to me this sentence:

"but you seek to make it compulsory."

What in Pedro´s text you find compulsory?

Many thanks and regards
Olga

2015-11-13 9:39 GMT-03:00 Schaefer, Brett <Brett.Schaefer at heritage.org>:

> Pedro,
>
> With respect, you are engaging in word games. Nothing you say below
> changes any of my points.
>
> The Board may currently be committed to finding a mutually acceptable
> solution, but you seek to make it compulsory.
>
> You want to raise the rejection requirement to 2/3 of the Board. The rules
> on PDPs do not alter this fact. You are proposing a change from the status
> quo.
>
> You are unwilling to commit to the current rules on consensus in exchange
> for these changes.
>
> These points are all correct.
>
> Brett
>
>
>
> >
>
> Brett Schaefer
> Jay Kingham Senior Research Fellow in International Regulatory Affairs
> Margaret Thatcher Center for Freedom
> Davis Institute for National Security and Foreign Policy
> The Heritage Foundation
> 214 Massachusetts Avenue, NE
> Washington, DC 20002
> 202-608-6097
> heritage.org
>
> On Nov 13, 2015, at 2:59 AM, Pedro Ivo Ferraz da Silva <
> pedro.ivo at itamaraty.gov.br> wrote:
> >
> > Dear Bret,
> >
> > With all due respect, many of the points you have raised below are
> simply not correct.
> >
> > There is no intention whatsoever to change the standard or nature of the
> GAC advice given to the Board.
> >
> > As I said previously to Keith, the sentence "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" is of restrictive nature, i.e. it is not
> adding new elements, but rather referring to a current practice (Board
> engaged in finding a mutually accepted solution) that now would require
> consensus advice.
> >
> > And, again, there are no radical changes being proposed. The suggested
> language does not only preserve 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. And as others have very
> wisely indicated, raising the rejection threshold to 2/3 makes it
> equivalent to the rejection threshold applied e.g. to PDPs, thus not
> changing at all the relative influence of the GAC advice in ICANN's
> decision-making system.
> >
> > Finally, as a member of the GAC, Brazil supports all its Operating
> Principles, including OP 47. We also support the notion - which is implicit
> is this very OP and concurs with GAC's consensus position put forth in the
> ICANN 54 communiqué - that is up to the GAC itself to determine what the
> definition it will apply to its consensus based decisions.
> >
> > Pedro
> >
> > ________________________________________
> > De: accountability-cross-community-bounces at icann.org [
> accountability-cross-community-bounces at icann.org] em nome de Schaefer,
> Brett [Brett.Schaefer at heritage.org]
> > Enviado: sexta-feira, 13 de novembro de 2015 1:32
> > Para: Olga Cavalli; Jorge.Cancio at bakom.admin.ch
> > Cc: accountability-cross-community at icann.org
> > Assunto: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
> >
> > As I understand it, Pedro is proposing a significant expansion of GAC
> authority as compared to the status quo.
> >
> > Currently, the Board, if it decides not to follow GAC advice, is
> required to "try, in good faith and in a timely and efficient manner, to
> find a mutually acceptable solution." Pedro proposes making a mutually
> acceptable solution and implementation compulsory -- "where that advice, if
> not followed, requires finding mutually agreed solutions for implementation
> of that advice."
> >
> >
> >
> > Pedro is proposing raising the threshold for the Board to reject GAC
> advice from a simple majority to a two-thirds majority.
> >
> >
> >
> > He is also proposing changing the standard from the "advice of the
> Governmental Advisory Committee on public policy matters shall be duly
> taken into account" into one where the Board must give GAC advice "due
> deference."
> >
> >
> >
> > Pedro apparently is opposed to the idea that the bylaws should restrict
> the privileged treatment of GAC advice only when that advice is supported
> by the current definition of GAC consensus in Operating Principle 47, i.e.
> without formal objection. I may be wrong, but that is the impression I get
> from his insistence that in providing advice to the Board "each Advisory
> Committee has the right to determine its particular definition of
> consensus."
> >
> >
> >
> > In sum, Pedro is proposing changes more radical than those that raised
> near unanimous opposition when the Board entertained it last year.
> >
> >
> >
> > No thanks.
> >
> >
> > ________________________________
> > Brett Schaefer
> > Jay Kingham Senior Research Fellow in International Regulatory Affairs
> > Margaret Thatcher Center for Freedom Davis Institute for National
> Security and Foreign Policy
> > The Heritage Foundation
> > 214 Massachusetts Avenue, NE
> > Washington, DC 20002
> > 202-608-6097
> > heritage.org<http://heritage.org/>
> >
> > ________________________________________
> > From: accountability-cross-community-bounces at icann.org [
> accountability-cross-community-bounces at icann.org] on behalf of Olga
> Cavalli [olgacavalli at gmail.com]
> > Sent: Thursday, November 12, 2015 9:39 PM
> > To: Jorge.Cancio at bakom.admin.ch
> > Cc: accountability-cross-community at icann.org
> > Subject: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
> >
> > Dear Steve
> > I agree with Jorge's comments.
> > regards
> > Olga
> >
> >> El 12 nov 2015, a las 10:55 p.m., <Jorge.Cancio at bakom.admin.ch> <
> Jorge.Cancio at bakom.admin.ch> escribió:
> >>
> >> Dear Steve
> >>
> >> After the Dublin consensus input and the vibrant debate on this list, I
> feel there is no presumption that the 2nd draft report text (or a small
> variation of it) would go by default to the rhird draft report.
> >>
> >> I feel that what we have to do is to work out a new text, which builds
> a consensus around what has been discussed here, i.e. which adresses the
> GAC consensus input, the alternative proposed by Brazil, and the concerns
> mentioned by a number of colleagues.
> >>
> >> "see" you all in some hours
> >>
> >> Jorge
> >>
> >> Von meinem iPhone gesendet
> >>
> >> Am 12.11.2015 um 21:15 schrieb Steve DelBianco <
> sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>:
> >>
> >> Per Brett’s request for a recap:
> >>
> >> GAC’s Dublin Communique included this txt on ST 18. ( The only surprise
> here was the highlighted text)
> >>
> >> "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.
> >>
> >> Pedro Ivo Ferraz da Silva (Brazil GAC) suggested text to address points
> 1-3 in the communique, with a new general section that applies to all ACs:
> >>
> >> 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.
> >>
> >> I offered an alternative to avoid use of the term “due deference” since
> that term is not defined, and might imply this obligation extends to all
> ACs.  And my alternative does not explicitly state that an AC can define
> its own consensus rule, since that is implied already.
> >>
> >> 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.
> >>
> >> I feel we are very close, and could merge these two alternatives into
> one.
> >>
> >> Second, Pedro added the GAC request to require "more than 2/3 board
> vote” to reject GAC advice.   That has not been previously discussed in the
> CCWG, and could be regarded as a bid to enhance the weight of GAC’s advice.
> >>
> >> As noted above, GAC could change its consensus rule to a much lower
> threshold than it uses today, “the absence of any formal objection”.   Yet,
> a board rejection would trigger the requirement to seek a mutually
> acceptable solution, even if a significant minority of sovereign
> governments  did not support the GAC 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).
> >>
> >> The attached text is what would go into our 3rd report, pending new
> text that would be supported by CCWG, GAC, the ICANN Board, and NTIA— which
> has repeatedly said that the bylaws change for ST18 is a requirement for
> the transition.
> >>
> >> —Steve
> >>
> >>
> >> From: <accountability-cross-community-bounces at icann.org<mailto:
> accountability-cross-community-bounces at icann.org>> on behalf of
> "Schaefer, Brett" <Brett.Schaefer at heritage.org<mailto:
> Brett.Schaefer at heritage.org>>
> >> Date: Thursday, November 12, 2015 at 6:09 PM
> >> To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:
> paul.rosenzweig at redbranchconsulting.com>>
> >> Cc: "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: Re: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion
> >>
> >> Would be useful to see the suggested changes laid out again, we've had
> a hundred emails in the past two days.
> >>
> >>
> >> <Stress Test 18 text for 3rd draft proposal[1].docx>
> >> _______________________________________________
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