[CCWG-ACCT] Recommendation 11 - GAC Advice - 1st reading conclusions

[Alice Jansen]

Sent on behalf of CoChairs

Please find below conclusions of our deliberations during call #79. The updated document is attached.


1.     Clarify whether current drafting imposed mandatory voting from the Board and represents an unintended change to the current practice (see IPC detailed comment page 8 on http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30nov15/pdfVVYmvrATNS.pdf ) To address this concern, add this clarification for legal counsel to consider when drafting bylaws language.
 This recommendation is intended to limit the conditions under which the ICANN board and GAC must try to find a mutually acceptable solution.  This recommendation shall not create any new obligations for ICANN board to consider and/or vote on GAC advice, relative to the bylaws in effect prior to the IANA transition.   This recommendation shall not create any obligation that ICANN is bound to implement any advice that is not rejected by the board.

2.     Confirm or discuss need for such a recommendation to change how GAC Advice is being treated by the Icann Board, in light of comments received.

3.     Confirm or discuss recommendation that at least 2/3rds of the Board was required to reject GAC consensus advice to the Board.

4.     Discuss request that GAC advice must be approved by general agreement in the absence of formal objection and that the definition of objection/consensus cannot be changed. Others specifically supported this provision.

5.     Add the requirement that a rationale must be provided for formal advice provided by an Advisory Committee to the ICANN Board. The Board should determine whether the rationale is adequate.

6.     To address the concern of GAC advice inconsistent with bylaws, add this clarification for legal counsel to consider when drafting bylaws language:
ICANN cannot take action - based on advice or otherwise – that is inconsistent with Bylaws: While the GAC is not restricted as to the advice it can offer to ICANN, it is clear that ICANN  may not take action that is inconsistent with its Bylaws. Any aggrieved party or the empowered community will have standing to bring an IRP to challenge whether any board action or inaction that is inconsistent with its bylaws, even if the board acted on GAC advice.



Lawyers’ Memo
We were asked to review the current Bylaws provision addressing GAC advice and determine whether the ambiguities we identified in our review of the proposed revisions to this provision are new or stem from ambiguities under the current Bylaws text. We have determined that there are ambiguities under the current Bylaws text, which provides as follows:
ICANN Bylaws Article XI, Section 2.1.j. The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

The phrase “duly taken into account” is ambiguous, but reading it together with the next sentence, which requires that the Board follow a specific procedure before taking actions inconsistent with GAC advice, we believe the best interpretation of this phrase is to mean “do not act inconsistently with.”  Based on this interpretation, we recommend the following clarification (underlined) to the first sentence of this Bylaws provision:  “The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies, and ICANN shall not act inconsistently with that advice except as otherwise provided in this paragraph.”

We also note that there is no meaningful legal distinction between  voting and determining to take an action, as some commenters have suggested.  The only way the Board can legally determine or decide anything under California law is by voting.

The proposed addition to the current Bylaws text is underlined below:

ICANN Bylaws Article XI, Section 2.1.j. The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of 2/3 of the Board, and the Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

Based on our interpretation of the current Bylaws text, described above, we believe this proposed provision results in the following process:
1.    If GAC provides advice (whether by a full GAC consensus or a lesser approval threshold), the ICANN Board must “duly take[] into account” that advice -- i.e., ICANN must not act inconsistently with that advice, unless #2 and/or #3 below apply.
2.    If GAC provides advice (whether by a full GAC consensus or a lesser approval threshold), and the ICANN Board decides  to take an action inconsistent with that advice, the ICANN Board must first give GAC notice and provide a rationale.
·       In addition, f the GAC  advice was by a full GAC consensus, the ICANN Board may decide to  take an action inconsistent with that advice only by a vote of 2/3 of the ICANN Board. If that 2/3 threshold is reached, GAC and ICANN must then try in good faith to find a mutually acceptable solution.  If the 2/3 threshold is not reached, ICANN is required to act consistently with the consensus GAC advice.
We recommend that consideration be given to further clarifying this process, and we agree with commenters who have concluded that the proposed provision does not impose an affirmative obligation upon ICANN’s Board to vote on GAC consensus advice every time that advice is provided.
We note that additional Bylaws language is being proposed to clarify that, in any case, the Board needs to act in compliance with the ICANN Bylaws.  Thus, if the Board were to determine that following GAC advice would result in non-compliance with the Bylaws, the Board should be able to reject the advice (with a majority or two-thirds vote, depending on whether the GAC advice was consensus advice) and explain its position to GAC.
NB: Focus on chartering organization feedback:
- GNSO : Strong opposition to rec as written in Third Draft Proposal. No support (most SG/Cs) to raise threshold for a Board vote to reject GAC advice. Serious concern over lack of specificity in relation of requirements for GAC advice (such as provision of rationale) and possibility that this recommendation, if adopted, could unduly change nature of Board-GAC relationship and/or position of GAC vis-à-vis other SO/ACs. Several SG/Cs believe any recommendation should retain current flexibility in Bylaws where Board is not required to undertake a formal vote in order to reject GAC advice.
- ccNSO : no specific comment
- ASO: In general we find the current text acceptable. Additionally we would like to make the following remarks: We would support a text that clarifies today’s practices and does not substantially change the GAC's role and how its advice is treated by the Board or substantially strengthen obligations for the Board to consider the GAC advice. We would not support a text that cannot be acceptable by the NTIA.
- GAC : There is no consensus within the GAC so far to support or object to the text contained in Recommendation 11 of the 3rd Draft Proposal.
- ALAC : support the recommendation
- SSAC : no specific comment
Second reading is planned for Thursday, 28 January.

Best regards

Mathieu, Thomas, León



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