[CCWG-ACCT] Negotiation 101

Wed Feb 17 13:37:13 UTC 2016

Respectfully, Nigel, I disagree.  When I learned negotiation tactics, this
one was referred to as ³Ticking Clock.²

J.

On 2/17/16, 3:11 , "accountability-cross-community-bounces at icann.org on
behalf of Nigel Roberts" <accountability-cross-community-bounces at icann.org
on behalf of nigel at channelisles.net> wrote:

>Why are you surprised? Standard negotiation tactics. 'Ask for more!'
>
>And now we've agreed on the price and the specification of the car, I'll
>have a full tank of gas and a set of floor mats as well, please.
>
>
>
>Nigel
>PS: I'd have been surprised if the Board DIDN'T do this-- it would be
>making me suspicious as to what I'd missed.
>
>On 17/02/16 08:52, Edward Morris wrote:
>> Brett, it appears to me that you are correct. The switch from the
>> membership model left us dependent upon spilling the Board, or parts of
>> it, as the ultimate community power. Now, following weeks of proper
>> consideration where the Board did not raise this concern, they are
>> making a last minute end run around the process attempting to raise the
>> threshold for board spillage in those areas where the issue for spillage
>> involves consensus Board advice that is not within the scope of an IRP.
>>
>> I note Becky Burr's comments on this issue:
>>
>>
>> 'If the community seeks to dump the Board based on its implementation of
>> GAC Advice, but where the justification for the use of this community
>> power is something other than a violation of the Bylaws or Articles,
>> then, in my view, the lower threshold should apply and there should be
>> no obligation to file an IRP (which, presumably, would be dismissed on
>> standing grounds).'
>>
>> Many members of the CCWG, including myself, have indicated agreement
>> with Becky's view.
>>
>> Can somebody point to me where this limitation on community power has
>> been proposed, discussed and agreed by the community? Can someone show
>> me where the two readings have been held on this issue?
>>
>> If not then this is a process violation and I will be forced to ask the
>> NCSG policy committee to file a complaint with the Office of the
>> Ombudsman. I don't believe the community has or will agree to this
>> limitation of the GAC carve out if given a chance to examine it and
>> weigh in on
>> the matter. It sorrows me that the Board is pushing this last minute
>> change that threatens the ongoing status of our fine Proposal. Of
>> course, given the timing this proposal could and should placed in the
>> Supplemental as a Minority Statement, nothing more,
>>
>> Best,
>>
>> Ed
>>
>> Sent from my iPhone
>>
>>> On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer at heritage.org
>>> <mailto:Brett.Schaefer at heritage.org>> wrote:
>>>
>>>
>>> Well, this is clear and it is what I was concerned about.
>>>
>>> Essentially, the Board is insisting in a 4 SOAC threshold for spilling
>>> the Board in all circumstances except when it is defying an IRP ruling
>>> against a decision based on consensus GAC advice.  It is a significant
>>> change making it more difficult for the EC to exercise its ultimate
>>> enforcement power.
>>>
>>> Moreover, it seems likely that, if the GAC decides not to participate
>>> in the EC as a full decisions like participant, and the thresholds are
>>> adjusted, the Board would insist on a unanimous 4 SOAC threshold to
>>> spill the Board.
>>>
>>> Am I wrong?
>>>
>>>
>>> ________________________________
>>> 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 <x-apple-data-detectors://3/1>
>>> Washington, DC 20002 <x-apple-data-detectors://3/1>
>>> 202-608-6097 <tel:202-608-6097>
>>> heritage.org <http://heritage.org/><http://heritage.org/>
>>>
>>> Begin forwarded message:
>>>
>>> From: Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au
>>> 
>>><mailto:Bruce.Tonkin at melbourneit.com.au><mailto:Bruce.Tonkin at melbourneit
>>>.com.au>>
>>> Date: February 16, 2016 at 8:28:04 PM EST
>>> To: Accountability Cross Community
>>> <accountability-cross-community at icann.org
>>> 
>>><mailto:accountability-cross-community at icann.org><mailto:accountability-
>>>cross-community at icann.org>>
>>> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the
>>> context of GAC advice
>>>
>>> Hello All,
>>>
>>> To reiterate the Board's position in the case of the carve out
>>> compromise involving GAC advice, the Board can agree to reducing the
>>> threshold for Board removal to three SOs or ACs, with no more than one
>>> objecting, when there was an IRP finding against the Board regarding
>>> the acceptance of GAC advice.
>>>
>>> For all other attempts to remove the full ICANN Board, the Board does
>>> not support lowering the threshold below four SOs or ACs, with no more
>>> than one objecting. . The power to spill the Board would remain
>>> available as contemplated within the CCWG's third draft proposal.
>>>
>>> For the avoidance of doubt, if the Board accepts GAC advice within the
>>> limitations of ICANN's mission and bylaws, an IRP panel confirms that
>>> is the case, and the community simply dislikes the GAC advice - then
>>> the threshold of 4 SOs and ACs continues to apply. If the GAC is
>>> excluded from participating then this would mean that the ccNSO, GNSO,
>>> ASO and ALAC would need to agree that the Board should be removed.
>>>
>>> Our view is that past cases relating to disagreement on GAC advice
>>> have been focussed on concerns that ICANN is exceeding its mission or
>>> is not following its processes. The IRP is the most appropriate
>>> vehicle to resolve disputes in this area. In general the Board
>>> consults widely with the whole community before accepting the advice
>>> from any one part of the community. We think a situation where the
>>> community broadly disagrees with an action the Board has taken that is
>>> within the mission and bylaws is likely to be extremely rare, and the
>>> threshold of 4 SOs and ACs is still appropriate in that scenario if
>>> the community simply dislikes the Board's decision.
>>>
>>> Regards,
>>> Bruce Tonkin
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> 
>>><mailto:Accountability-Cross-Community at icann.org><mailto:Accountability-
>>>Cross-Community at icann.org>
>>> 
>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community<htt
>>>ps://mm.icann.org/mailman/listinfo/accountability-cross-community>
>>> 
>>><https://mm.icann.org/mailman/listinfo/accountability-cross-community%3C
>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community%3E>
>>
>> Sent from my iPhone
>>
>> On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer at heritage.org
>> <mailto:Brett.Schaefer at heritage.org>> wrote:
>>
>>> Jordan,
>>>
>>> The way I read it, the Board is insisting on a 4 SOAC threshold for
>>> spilling the Board in all circumstances except when it is specifically
>>> defying an IRP ruling against a decision based on consensus GAC advice.
>>>
>>> In other words, if the community wants to spill the Board based on its
>>> implementation of GAC Advice, but where the justification for the use
>>> of this community power is something other than a violation of the
>>> Bylaws or Articles, then the Board says that the 4 SOAC threshold
>>> should apply rather than the 3 SOAC threshold currently proposed under
>>> the GAC carve out.  If this read is wrong, please let me know how.
>>>
>>> This may be acceptable to the CCWG, but let's not pretend that it is
>>> some minor tweak. As Becky noted, this would materially narrow the
>>> spill the Board power by making it harder to exercise.
>>>
>>> I agree that this situation should rarely arise. The community is
>>> populated by serious people and the Board should not fear that these
>>> powers will be exercised lightly. But they also need to be reasonably
>>> available if necessary. That is why we resisted setting the thresholds
>>> at levels requiring unanimous support in the first place. In my
>>> opinion, the Board has not offered a compelling reason for their
>>> proposed change.
>>>
>>> If the Board is needs some assurance, then Becky's narrower
>>> interpretation should be sufficient.
>>>
>>> Best,
>>>
>>> Brett
>>>
>>>
>>> ________________________________
>>> 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 <http://heritage.org><http://heritage.org/>
>>>
>>> On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan at internetnz.net.nz
>>> <mailto:jordan at internetnz.net.nz><mailto:jordan at internetnz.net.nz>>
>>>wrote:
>>>
>>> Robin, I don't think that is what is being proposed.
>>>
>>> All that is being discussed is in relation to the GAC carveout, where
>>> we had earlier agreed that where there was a challenge to the Board's
>>> implementation of GAC advice, GAC couldn't also be a decisional
>>> participant in any move to recall the Board.
>>>
>>> That got added to by including a lower thresholds in that situation,
>>> to avoid a unanimity requirement.
>>>
>>> Then it got qualified by noting that if there had been an IRP, etc etc.
>>>
>>> But what is not being proposed, as I understand it, is any change to
>>> the general power to recall the ICANN Board or the thresholds to
>>> operate it.
>>>
>>> I would not support any such changes.
>>>
>>>
>>> cheers
>>> Jordan
>>>
>>>
>>> On 17 February 2016 at 15:55, Robin Gross <robin at ipjustice.org
>>> <mailto:robin at ipjustice.org><mailto:robin at ipjustice.org>> wrote:
>>> The CCWG never discussed, let alone agreed to narrow the grounds for
>>> spilling the board to only those grounds for an IRP as the board
>>> suddenly proposes.  We cannot have such a significant narrowing of our
>>> mechanisms at the hour 23:59.  The board should have proposed this
>>> curtailment months ago, when the issue could have been fairly
>>> considered.  But the board can¹t slip it in at this impossibly late
>>>hour.
>>>
>>> Robin
>>>
>>>
>>>
>>> On Feb 16, 2016, at 5:28 PM, Bruce Tonkin
>>> <Bruce.Tonkin at melbourneit.com.au
>>> 
>>><mailto:Bruce.Tonkin at melbourneit.com.au><mailto:Bruce.Tonkin at melbourneit
>>>.com.au>>
>>> wrote:
>>>
>>> Hello All,
>>>
>>> To reiterate the Board's position in the case of the carve out
>>> compromise involving GAC advice, the Board can agree to reducing the
>>> threshold for Board removal to three SOs or ACs, with no more than one
>>> objecting, when there was an IRP finding against the Board regarding
>>> the acceptance of GAC advice.
>>>
>>> For all other attempts to remove the full ICANN Board, the Board does
>>> not support lowering the threshold below four SOs or ACs, with no more
>>> than one objecting.  .  The power to spill the Board would remain
>>> available as contemplated within the CCWG's third draft proposal.
>>>
>>> For the avoidance of doubt, if the Board accepts GAC advice within the
>>> limitations of ICANN's mission and bylaws, an IRP panel confirms that
>>> is the case, and the community simply dislikes the GAC advice - then
>>> the threshold of 4 SOs and ACs continues to apply.   If the GAC is
>>> excluded from participating then this would mean that the ccNSO, GNSO,
>>> ASO and ALAC would need to agree that the Board should be removed.
>>>
>>> Our view is that past cases relating to disagreement on GAC advice
>>> have been focussed on concerns that ICANN is exceeding its mission or
>>> is not following its processes.   The IRP is the most appropriate
>>> vehicle to resolve disputes in this area.   In general the Board
>>> consults widely with the whole community before accepting the advice
>>> from any one part of the community.    We think a situation where the
>>> community broadly disagrees with an action the Board has taken that is
>>> within the mission and bylaws is likely to be extremely rare, and the
>>> threshold of 4 SOs and ACs is still appropriate in that scenario if
>>> the community simply dislikes the Board's decision.
>>>
>>> Regards,
>>> Bruce Tonkin
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> 
>>><mailto:Accountability-Cross-Community at icann.org><mailto:Accountability-
>>>Cross-Community at icann.org>
>>> 
>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community<htt
>>>ps://mm.icann.org/mailman/listinfo/accountability-cross-community>
>>>
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> 
>>><mailto:Accountability-Cross-Community at icann.org><mailto:Accountability-
>>>Cross-Community at icann.org>
>>> 
>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community<htt
>>>ps://mm.icann.org/mailman/listinfo/accountability-cross-community>
>>>
>>>
>>>
>>>
>>> --
>>> Jordan Carter
>>>
>>> Chief Executive
>>> InternetNZ - your voice for the Open Internet
>>>
>>> +64-4-495-2118 (office) | +64-21-442-649 (mob)
>>> Email: jordan at internetnz.net.nz
>>> <mailto:jordan at internetnz.net.nz><mailto:jordan at internetnz.net.nz>
>>> Skype: jordancarter
>>> Web: www.internetnz.nz
>>> <http://www.internetnz.nz><http://www.internetnz.nz>
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> 
>>><mailto:Accountability-Cross-Community at icann.org><mailto:Accountability-
>>>Cross-Community at icann.org>
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> <mailto:Accountability-Cross-Community at icann.org>
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
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