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

Fri Nov 13 14:40:46 UTC 2015

Pedro

The difference is between your language "requires finding" mutually agreed
solutions and "required to try to find" such solutions.  If you mean that
the process is required that is one thing.  If you mean that a mutually
agreed solution is required, that's a different statement.  One says that
the negotiation is compulsory the other that its resolution is compulsory.
Which do you mean?

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

-----Original Message-----
From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo at itamaraty.gov.br] 
Sent: Friday, November 13, 2015 2:59 AM
To: Schaefer, Brett <Brett.Schaefer at heritage.org>; Olga Cavalli
<olgacavalli at gmail.com>; Jorge.Cancio at bakom.admin.ch
Cc: accountability-cross-community at icann.org
Subject: [CCWG-ACCT] RES: Stress Test 18: bylaw amendment suggestion

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:accountabilit
> y-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 redbra
> nchconsulting.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> 
> _______________________________________________
> Accountability-Cross-Community mailing list 
> Accountability-Cross-Community at icann.org<mailto:Accountability-Cross-C
> ommunity at icann.org> 
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> _______________________________________________
> Accountability-Cross-Community mailing list 
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community