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Greg, you say that the current Bylaws do not reference voting. The
current wording
(<a href="https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j" eudora="autourl">
https://www.icann.org/resources/pages/governance/bylaws-en/#XI-2.1j</a>)
is "In the event that the ICANN Board determines to take an action
that is not consistent with the Governmental Advisory Committee
advice..."<br><br>
How else is the Board able to formally decide on anything other than by
voting? <br><br>
Alan<br><br>
At 16/12/2015 03:09 AM, Greg Shatan wrote:<br>
<blockquote type=cite class=cite cite="">All,<br><br>
In reviewing the Third Draft Proposal, concerns have been raised within
my constituency that the proposed Bylaw does more than replace an
existing "majority" threshold with a new "2/3"
threshold. The concern is that the proposed Bylaw introduces a
"mandatory vote" by the Board in order to reject GAC Advice
where the Bylaws do not currently require a Board vote. Further,
there appears to be a concern that, if the Board does not take a vote and
affirmatively reject a piece of GAC advice, then that GAC advice becomes
binding on ICANN.<br><br>
These concerns stem from a reading of the draft Bylaw (new language in
red):<br><br>
<br>
<dl>
<dl>
<dd>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 two-thirds of the Board, and tT</s>he 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.<br><br>
<br>
</dl>
</dl><font face="verdana">The current language of the Bylaw makes no
reference to voting, only to the far more ambiguous "determines to
take an action." As such, adding a reference to a vote can be
seen to add a new element (aside from the introduction of a 2/3
threshold): the element of a bylaws-mandated vote. Similarly, the
statement that GAC Advice can only be rejected by a vote of the Board can
be read to state that if no such vote is taken (or if such vote is taken
and fails) that the GAC Advice is then something ICANN is bound to
follow.<br><br>
I don't think either of these things were intended by the CCWG.
Whether they are misreadings of our draft language or unintended
consequences of the drafting, this concern is troubling. If it is
the intent of some of those drafting this language to force a vote where
none is currently required, then that is even more troubling.<br><br>
I would appreciate some clarification on these matters that I can bring
back to my group. <br><br>
I would also appreciate the CCWG considering a change in language to
remove this ambiguity which is currently causing great consternation in
my group.<br>
</font><br>
I suggest the language below. This m<br>
ore closely track<br>
s<br>
the language of the existing bylaw and avoid the use of the term
"vote," with its potential unintended consequences:<br>
<font face="verdana"><br>
</font>
<dl>
<dl>
<dd>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.<br>
<dd> <br>
<dd><font color="#0000FF">If the Board<br>
<dd> <br>
<dd>determines to take an action that is not consistent with <br>
</font>
<dd>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,<br>
<dd> <br>
<dd><font color="#0000FF">such determination must be supported by
<br>
<dd>two-thirds of the Board,</font> 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.<font face="verdana"><br>
<dd><br>
</font><br>
</dl>
</dl> <br>
I would appreciate your thoughts on this point and the revised
language. Thank you.<br><br>
Greg<br>
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