[CCWG-ACCT] Recommendation 11, 2/3 board threshold, GAC consensus, and finishing

[Malcolm Hutty]

On 02/02/2016 05:29, Drazek, Keith wrote:
> Hi all,
> 
> As we prepare for our upcoming call, I want to reiterate my support for
> Becky's suggestion. I must also remind everyone that the GNSO is highly
> unlikely to support inclusion of the 2/3 threshold. 

I believe that one of the reasons for continuing opposition is that
neither of the two proposed compromise suggestions (Becky's, or 60%
threshold) actually address the core issue motivating opposition.

That is the fear that a supermajority rule will also create a
presumption that the Board must accept GAC advice, thereby changing how
they evaluate the advice they receive. In other words, the fear that we
are changing not just how the Board decides as a whole (from 50/50 to
2/3 or 60%) but are also accidentally changing the duty of the Directors
individually.

The addition of the following text might help allieviate that concern:

"This clause does not create a presumption that the Board shall accept
such advice, or change the criteria for how it shall be evaluated."

This text seeks to avoid a possible unintended consequence of adopting
the supermajority rule. In that sense, it is similar to the approach we
took when we said that in adopting the 2/3 rule we didn't want to
accidentally force the Board to conduct its affairs through formal
voting. It makes clear that the only thing we are changing is the voting
threshold, nothing more.

Possibly lawyers could offer alternative wording that achieves the same
thing, but first we need to agree that we do not intend to change
anything other than the voting threshold.

I offer this in the spirit of compromise, and I hope it will be given
fair consideration.

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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