[CCWG-ACCT] Fwd: FW: CCWG - recs 1,2 and 11
Bernard Turcotte
turcotte.bernard at gmail.com
Fri Feb 12 18:32:12 UTC 2016
Brett,
Good catch and we agree, this one seems to have slipped by everyone even if
its been there since the third draft.
As such Becky Burr, the co-chairs and legal counsel have looked at this and
propose the following as a more adequate text for this in recommendations 1
and 2:
• To the extent the Government Advisory Committee (GAC) wishes to
participate in decision-making by the Empowered Community, which the GAC
has the flexibility to determine, it would be one of five Decisional
Participants. In addition, the GAC will not participate as a decision-maker
in community deliberations involving a challenge to the Board’s
implementation of GAC consensus advice. This “carve out,” combined with
the safeguards in Recommendation 11, leads the CCWG-Accountability to
believe that this NTIA requirement is met, even when considering the
increased threshold from 50 to 60% for the Board to reject GAC consensus
advice.
We hope this addresses your concerns.
Thanks
B.
On Fri, Feb 12, 2016 at 8:18 AM, Schaefer, Brett <
Brett.Schaefer at heritage.org> wrote:
> Chairs,
>
>
>
> Thank you. It seems to me that these statements at the conclusion of Rec 1
> and 2 don’t accurately reflect the substance of the proposal:
>
>
>
> Rec 1:
>
>
>
> 31 NTIA will not accept a proposal that replaces the NTIA role
> with a government-led or an inter-governmental organization solution.
>
> • Retaining decision-making based on consensus rather than
> voting.
>
> • Maintaining the advisory role of governments in the SO and
> AC structure.
>
>
>
> Rec 2:
>
>
>
> 61 NTIA will not accept a proposal that replaces the NTIA role
> with a government-led or an inter-governmental organization solution.
>
> • Retaining decision-making based on consensus rather than
> voting.
>
> • Maintaining the advisory role of governments in the SO and
> AC structure, including the GAC.
>
> • Enabling all interested stakeholders to join consultations
> through SOs and ACs or through the Community Forum.
>
>
>
> In fact, the decisional model does expressly contemplate voting, i.e.
> tallying support or opposition among the decisional participants with
> specified thresholds, to climb the escalation ladder and exercise community
> powers.
>
>
>
> Moreover, the GAC is now a participant in the Empowered Community (albeit
> with the carve out) and the advisory role has been altered, not maintained,
> by defining GAC consensus and elevating the Board threshold to reject GAC
> consensus advice to 60 percent. These are significant changes.
>
>
>
> Best,
>
>
>
> Brett
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Bernard
> Turcotte
> *Sent:* Friday, February 12, 2016 7:21 AM
> *To:* Accountability Cross Community
> *Subject:* [CCWG-ACCT] Fwd: FW: CCWG - recs 1,2 and 11
>
>
>
>
>
> ------------------------------
> 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
>
> ---------- Forwarded message ----------
> From: *Grapsas, Rebecca* <rebecca.grapsas at sidley.com>
> Date: Thu, Feb 11, 2016 at 7:28 PM
> Subject: FW: CCWG - recs 1,2 and 11
> To: Bernard Turcotte <turcotte.bernard at gmail.com>
> Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com>, ICANN-Adler <
> ICANN at adlercolvin.com>, "Greeley, Amy E." <AGreeley at sidley.com>
>
> Dear Bernie,
>
>
>
> Attached please find minor proofing/conforming changes on Annexes 1, 2 and
> 11. Most of the edits to Annex 1 were provided on January 31 but had not
> been incorporated. If possible, it would be great if these could be
> reflected in the final version to be distributed for review. We also
> noticed that Annex 3 did not incorporate our edits sent on January 31,
> 2016; these are pasted again below for your convenience. If you would
> prefer that we prepare a markup of Annex 3, please send us a Word version.
> Many thanks.
>
>
>
> *Annex 3*:
>
>
>
> · *Global*:
>
> o “c*C*ommunity p*P*ower” or “c*C*ommunity p*P*owers”
>
>
>
> · *Summary (p. 1)*:
>
> o “(ICANN) have a single…”
>
>
>
> o “Any changes to Fundamental Bylaws require approval from both the
> ICANN Board and *the Empowered Community*community as outlined in…”
>
>
>
> · *Paragraph 1 (p. 2), Paragraph 18 (p. 5)*:
>
> o “The * Empowered Community for enforcing Community Powers,*Community
> Mechanism as the Sole Designator Model including the *role of sole
> designator of ICANN’s Directors,*the right of inspection granted to
> Decisional Participants in the Empowered Community as described in
> Recommendation 1.”
>
>
>
> o “The process for amending Fundamental Bylaws and/or Articles of
> Incorporation*, and for approving ICANN’s sale or other disposition of
> all or substantially all of ICANN’s assets,* as described in
> Recommendation 3.”
>
>
>
> o “The PTI Governance and Customer Standing Committee (CSC) structures,
> also required by the CWG-Stewardship’s Proposal.”
>
>
>
> o “The right*s* of investigation *and inspection* (as described in Section
> 3 of Annex 01 - Recommendation #1: Establishing an Empowered Community
> for Enforcing Community Power)*.*”
>
>
>
> · *Paragraph 4 (p. 2)*: “Today, ICANN Bylaws can be changed by a
> resolution of the Board upon a 2/3 majority vote* of all of the Directors*.
> The CCWG-Accountability believes that the set of key Bylaws fundamental to
> ICANN’s stability and operational continuity and essential for the
> community’s decisions-rights should be given additional protection from
> changes by requiring *Empowered Community *community approval of any
> amendments.”
>
>
>
> · *Paragraph 5 (p. 3)*: “By sharing the authority to authorize
> changes between the ICANN Board and the *Empowered Community *ICANN
> community (organized through its *participating* Supporting Organizations
> (SOs) and Advisory Committees (ACs)*,* *the “Decisional Participants” *in
> the Empowered Community*, as* outlined in Recommendation #1…).”
>
>
>
> · *Paragraph 11 (p. 4, graphic)*: Remove the “Sidley/Adler Note,”
> but we note that our comments on the graphic have not been incorporated
> into the latest draft.
>
> o In the graphic, for the box on the lower right, we recommend adding
> “(3/4 MAJORITY)” after “REQUIRES ICANN BOARD.” We also recommend
> addressing the Articles of Incorporation in a separate graphic under the
> section titled “Articles of Incorporation.”
>
>
>
> · *Paragraph 12 (p. 4)*: “The *Empowered Community *community
> approves the addition, amendment, or removal of the Fundamental Bylaw by
> using its power as an Empowered Community to approve the change…”
>
>
>
> · *Paragraph 13 (p. 4)*: “If the addition, amendment, or removal
> of the Fundamental Bylaw is agreed upon by both the ICANN Board and the *Empowered
> Community *community:”
>
>
>
> · *Paragraph 16 (p. 5)*: “The CCWG-Accountability *recommends*
> suggests that only critical aspects of the ICANN Bylaws be classified as
> Fundamental Bylaws to avoid introducing unnecessary rigidity into ICANN’s
> structures. The CCWG-Accountability concluded that *recommending*
> suggesting that all changes…”
>
>
>
> · *Paragraph 26 (p. 6)*: “…a provision will need to be added to
> the Articles *of Incorporation* requiring Empowered Community approval…”
>
>
>
> · *Paragraph 30 (p. 7)*: “Through the *The* Empowered Community,
> SOs and ACs would have to *affirmatively consent* give positive assent to
> any change proposed and adopted by the ICANN Board before the amendment
> could become legally effective, as part of a joint decision process between
> the ICANN Board and the *Empowered Community *community.”
>
>
>
> · *Paragraph 32 (p. 7)*: “Such changes require a high degree of *support
> from the Decisional Participants in the Empowered Community*community
> assent, as the purpose of this power is to make changing Fundamental
> Bylaws or the Articles of Incorporation possible only with very wide
> support from the community.”
>
>
>
> · *Paragraph 34 (p. 7)*: “Clarified *the *process for change*s* of
> Articles of Incorporation to be similar to process for changes to
> Fundamental Bylaws*, as well as the process for approving ICANN’s sale or
> other disposition of all or substantially all of ICANN’s assets*.”
>
>
>
> · *Paragraph 36 (p. 8)*: “ICANN Board: Community rights regarding
> the ability to appoint/remove Directors of the ICANN Board, and recall
> the entire Board.”
>
>
>
> *REBECCA* *GRAPSAS*
> Counsel
>
> Sidley Austin
> 787 Seventh Avenue
> New York, NY 10019
> +1-212-839-8541
>
> Level 10
> 7 Macquarie Place
> Sydney NSW 2000
> Australia
> +61-2-8214-2235
> rebecca.grapsas at sidley.com
> www.sidley.com
> ------------------------------
>
> *From:* Bernard Turcotte
> *Sent:* Tuesday, February 09, 2016 06:27:31 PM
> *To:* Gregory, Holly; Rosemary E. Fei; ACCT-Staff (acct-staff at icann.org);
> Burr, Becky; Cheryl Langdon-Orr; Jordan Carter; León Felipe Sánchez Ambía;
> Mathieu Weill; Steve DelBianco; Thomas Rickert (thomas at rickert.net)
> *Subject:* CCWG - recs 1,2 and 11
>
> Holly, Rosemary,
>
>
>
> had to modify these per the results today for rec 11.
>
>
>
> In order to give you a leg up I thought I would forward these before the
> final report as they should be 99%+ stable.
>
>
>
> I have attached TC from a clean of your accepted comments.
>
>
>
> Hope that is ok.
>
>
>
> Cheers.
>
>
>
> B.
>
>
>
>
>
>
>
>
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