[CCWG-ACCT] PDP interaction with bylaws veto - proposed approach

Wed Nov 18 14:16:46 UTC 2015

Well I’m not very sure either, but I imagine that a PDP on new gTLD could potentially impact significantly other SO/AC than the GNSO for instance.

Regards

Jorge

Von: Greg Shatan [mailto:gregshatanipc at gmail.com]
Gesendet: Mittwoch, 18. November 2015 15:13
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
Cc: Jordan Carter <jordan at internetnz.net.nz>; accountability-cross-community at icann.org
Betreff: Re: [CCWG-ACCT] PDP interaction with bylaws veto - proposed approach

Jorge,

I'm not sure I agree with your statement: "PDPs may result in structural changes, which may affect other parts of the community."  There are limitations on what PDPs can consider and achieve, and I'm struggling to think of a way that a PDP could result in structural changes.  I can't think of a past PDP that has had such a result. I'm primarily familiar with GNSO PDPs, but I expect the same is true of ccNSO PDPs. If this is to be a basis for objection to Jordan's proposal, I think this would need to be a significant possibility.

If you could "put some meat on the bones,' so to speak, that would be helpful in understanding your concern.

Thanks!

Greg

On Wed, Nov 18, 2015 at 5:35 AM, <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> wrote:
Dear Jordan

I wonder whether it is possible to objectively separate PDPs from other bylaw changes. How and who would be the arbiter in these cases?

PDPs may result in structural changes, which may affect other parts of the community. By giving the starting organization a veto over the exercise of the community power, aren’t we privileging that organization?

As far as I know when a PDP resulting in a bylaws change comes to the Board, there is no priviledged position for the Board members coming from the starting organization. The Board just decides with the well-being of the organization and the global public interest in their mind, right?

Just some thoughts and sorry for chiming in so belatedly, but as you know there are many parallel tracks ongoing

Regards

Jorge

Von: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>] Im Auftrag von Jordan Carter
Gesendet: Dienstag, 17. November 2015 08:32
An: Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Betreff: [CCWG-ACCT] PDP interaction with bylaws veto - proposed approach

Dear CCWG colleagues,

PDP Interaction with Bylaws Veto

In developing accountability improvements for ICANN, the CCWG has been careful to try not to change ICANN's core policy-making processes. The tools it has proposed to improve accountability are generally aimed at ICANN-wide issues, not policy development in the SOs.

An example has been raised where policymaking and the bylaws veto power might clash. Here is the scenario:

The outcome of a PDP within an SO could mean that some consequential changes to the ICANN bylaws were needed to implement its recommendations.

PDP is core policy making and should not be subject to community veto.

If the PDP *did* require bylaws changes, and those changes *were* subject to the veto, then in effect the community veto would apply to policymaking.

This is a gap in our core proposal which can reasonably easily be closed.

Here is the simplest way to close the gap and ensure policy-making is protected from said veto:

1: put a requirement (in the bylaws) that any Bylaws changes that are required to implement a PDP are clearly identified in this way, and are not combined with other, non-PDP related bylaws changes.

2: put a requirement in the Standard Bylaws veto process that for these two steps of the community escalation process:
 -- decision to hold a community forum
 -- decision to exercise the veto power
the SO which has performed the PDP giving rise to the Bylaws change MUST express its SUPPORT for the exercise of the veto.

This approach has the least possible interference with the scheme of our community powers, does not reopen questions about relative weights between SOs/ACs, does not ban a veto being considered, etc. The community can still trigger a veto process and have the conference call, so issues causing concern will be discussed in a community-wide forum.

If this exceptional treatment to a bylaws change means the community really can't live with the outcome of a PDP and associated bylaws changes, they have a number of remedies they could use:

- they can work with the Board to ensure that the bylaws change proposal doesn't get the required (2/3?) majority in the Board to be approved (and so would not be implemented)

- they can recall the ICANN Board and replace it with a different Board that will follow the community's wishes in not implementing such a bylaws change

In other words, this does not leave the possibility of rogue "ICANN transformation by PDP" on the table.

Other options I considered were:

- a blanket rule that no standard bylaws veto could apply to a PDP bylaws change (rejected because this seemed to change the community power more than minimally)

- a rule that no standard bylaws veto could apply to a PDP bylaws change unless it exceeded certain impacts - for instance a net financial impact of $0.5m (rejected because it would be complex to decide the principles to apply to what was in and what was out, and because boundary cases would need adjudication)

- a rule that no standard bylaws veto could apply to a PDP bylaws change that only affected the Bylaws that constitute that SO (rejected because policy may properly go beyond the structure of the SO's bylaws)

I look forward to your feedback on this proposed way through, and I thank those who have taken the time to discuss the issue with me in coming to this recommendation.

cheers
Jordan

Jordan Carter
WP1 Rapporteur, CCWG

Chief Executive
InternetNZ

+64-4-495-2118<tel:%2B64-4-495-2118> (office) | +64-21-442-649<tel:%2B64-21-442-649> (mob)
Email: jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
Skype: jordancarter
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Sent on the run, apologies for brevity

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