[CCWG-ACCT] Rationale for Stress Test 18

[Perez Galindo, Rafael]

Dear Jordan

you underpin your view on this presumption: "" If ICANN does have to come to "mutually acceptable solutions" then that implies it's mutual acceptance between two parties ""

That is not what the Bylaws say. The Board is only obliged to engage to TRY to find a solution. The Board does NOT have to reach an agreeable solution, it only has to engage with the GAC. In that case, where a solution is not found, the Board CAN just SAY NO to the GAC, turning the GAC down by simple majority of its members, and just stick to the decision they originally made.

In addition, I again draw your attention to the fact that in the case of the GNSO, the threshold for rejection of supermajority (not consensus!) policy is 2/3 of the Board. 

Best
Rafa

________________________________________
From: accountability-cross-community-bounces at icann.org [accountability-cross-community-bounces at icann.org] on behalf of Jordan Carter [jordan at internetnz.net.nz]
Sent: 18 October 2015 14:33
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Rationale for Stress Test 18

Dear Rafael, dear all,

I have two thoughts in relation to one question that you asked:

On 18 October 2015 at 10:03, Perez Galindo, Rafael <RPEREZGA at minetur.es<mailto:RPEREZGA at minetur.es>> wrote:
...
So, the engagement process is not a negotiation, and it does not oblige the Board to move its position by a millimeter at all. Where is the accountability issue?


to me there are two accountability issues arising if the proposed bylaws change is not made:

1. The duty ICANN has to respond to GAC advice with an attempt to come to a "mutually acceptable solution" should not be able to be made broader by the unilateral decision of the GAC. Nobody is saying GAC should not choose GAC's own procedures  ---  just that ICANN shouldn't be obliged to respond to non-consensus advice in the same way. The accountability issue is that this would be a change to the relative level of influence of GAC inside the ICANN framework only by decision of the GAC.

2. If ICANN does have to come to "mutually acceptable solutions" then that implies it's mutual acceptance between two parties. In a context where there was GAC advice without consensus, there would be more than two parties. ICANN, some GAC members, and some other GAC members. For ICANN to come to a solution would involve ICANN making decisions between the interests of sovereigns. It is an accountability issue for the whole ICANN community for the ICANN Board's scope to be extended in such a way -- but a change to GAC operating principles allowing such non-consensus advice, should it occur, could be made just by GAC today, with no say for the rest.


I don't think ICANN making decisions between conflicting sovereigns is a good idea. And I don't think any AC should be able to essentially expand the scope of its role on its own decision.

Those are why I think there is an accountability problem if the bylaws change or some version that achieves the same thing (freedom for GAC to choose its advice and its decisions, but clear rules about when "mutually acceptable solutions" have to be found) does not happen.


best
Jordan