[CCWG-ACCT] Board comments relating to GAC Advice

[Bruce Tonkin]

Hello All,

The Board met in Singapore yesterday and discussed several of the CCWG recommendations.   We will be providing a full set of comments later today.

Given that there is a call starting in about 10 hours I thought it might be helpful to provide the Board's current thinking on the general topic of the Board's treatment of GAC advice.   Note the Board has not had a discussion or formed a position about the thresholds of 51%, 60%, 66% etc, which are currently being debated in the CCWG.


Requirement for Formal Decision

The Board understands the concern that the language in the current bylaws relating to the Board making an initial determination that it intends to act inconsistently with GAC advice might be subject to interpretation.  As a matter of clarification, the Board recommends that the current practice of the Board, which allows flexibility, be used when revising the language of this section, so that the Board is not subject to a changed process or new affirmative voting requirements. 

The current practice was  established and developed after the first Accountability and Transparency Review.  At that time, the Board and the GAC, through the Board/GAC Recommendations Implementation Working Group (BGRI), developed a process to lead to consultations between the Board and GAC, if ever necessary.  This process document is available at https://gacweb.icann.org/download/attachments/27132063/2013-04-07-Process%20forConsultations%20between%20ICANN%20and%20GAC.doc?version=1&modificationDate=1376102118000&api=v2 .  The Board is provided flexibility:  "In the event that the Board determines, through a preliminary or interim recommendation or decision, to take an action that is not consistent with GAC advice, the ensuing consultations will be considered "Bylaws Consultations".  The Board will provide written notice to the GAC (the "Board Notice") stating, in reasonable detail, the GAC advice the Board determines not to follow, and the reasons why such GAC advice may not be followed."   The Board recommends that, to the extent the Bylaws language needs to be clarified on this issue, that it is clarified to align with the current practice that has been discussed, agreed to, and is not problematic in regards to accountability.

Similarly, while the Board is required to take GAC advice into account, the Board understands that recommendation is not intended to impose any new requirements for the Board to take decisions on GAC advice.  This issue can be addressed in the Bylaws drafting notes by indicating that the Board should not be obligated to act on all GAC advice through a vote.


Considering Rationale

The Board agrees that all Advisory Committees should be required to provide rationale to accompany advice.  The Board understands the CCWG recommendation to place an obligation on the Board, when taking a decision on a piece of advice, to consider whether the Board found the rationale sufficient.  The Board would always be in a position to indicate if additional information is needed prior to completing consideration of any piece of advice.  The Board does not consider this recommendation to impose a requirement that - separate from when the Board is considering advice - that the Board must provide a specific determination for each piece of advice received regarding whether the Board felt the rationale was sufficient.  The Board urges the CCWG to clarify this issue for Bylaws drafting.


Uniform Treatment of Advisory Committee Advice

The Board agrees with the CCWG-Accountability's clarification that, if the Board takes action inconsistent with the Bylaws - even if that action is based upon following the advice of an Advisory Committee - the Board can be subject to an IRP.  To the extent that the CCWG believes that it is important to specifically identify this in the Bylaws, the text used should apply to all Advisory Committees, and not solely refer to the GAC.

Regards,

Bruce Tonkin

ICANN Board Liaison to the CCWG