[gnso-improvem-impl-sc] Re: Background on New Issues: Email Voting and Procedural Waivers

[Marika Konings]

To echo what Thomas outlines below, in the past the GNSO Council on occasion
waived its rules through the mechanism of non-objection. The cases that I
recall, related to the late submission of motions. In those instances there
was either a sense of urgency and/or a a motion that was considered
non-controversial and supported by all. In order to establish whether there
would be support for doing so, the Chair would typically ask whether there
would be any objections to considering the motion despite not having met the
deadline. If there would be no objections, the motion could be considered.
If there were objections, the motion would not be considered. However, at
the meeting in Durban it was pointed out that there is actually no formal
waiver included in the GNSO Operating Procedures. Most agreed that it would
be helpful to consider including such a formal waiver in the GNSO Operating
Procedures in order to formalise this practice. As such, I'm not really sure
whether there are any variables that would need to be considered as the
basic principle would be that in any case of objection / non-support the
waiver would not apply. Taking into account the feedback that Thomas
provided in relation to corporate law and the GNSO Council's past practice,
the main question seems to be whether such a waiver would apply through
unanimous support (would a vote need to be taken, or formal position need to
be stated by each Councillor) or non-objection (only those objecting to the
waiver are asked to indicate their non-support).

Best regards,

Marika

From:  Thomas Rickert <rickert at anwaelte.de>
Date:  Saturday 2 November 2013 13:04
To:  Julie Hedlund <julie.hedlund at icann.org>
Cc:  "Aikman-Scalese, Anne" <AAikman at lrrlaw.com>,
"gnso-improvem-impl-sc at icann.org" <gnso-improvem-impl-sc at icann.org>, "Cover,
Cynthia" <CCover at lrrlaw.com>
Subject:  Re: [gnso-improvem-impl-sc] Re: Background on New Issues: Email
Voting and Procedural Waivers

All,
with respect to the question of waivers, I guess there is a comparable
scenario in corporate law that may be useful. Procedural requirements such
as invitation periods or other formal requirements for invitations to
shareholders' meetings can be waived only on condition that the waiver is
supported unanimously.

For our scenario that could mean that a waiver would only be possible if all
Councillors unanimously support it. That would give the Council flexibility
to take action on motions that are undisputed, but where i.e. the motions
deadline has been missed.

On the other hand, where a Councillor is not in a position to take action,
e.g. because he or she could not discuss the matter sufficiently with the
respective group, the Councillor would not support the waiver and then the
waiver cannot be granted and the situation would remain as it is today.

Thanks,
Thomas

=============
thomas-rickert.tel
+49.228.74.898.0

Am 01.11.2013 um 14:32 schrieb Julie Hedlund <julie.hedlund at icann.org>:

> Thank you Anne.  Those are all important points. I think you are right that
> there could be a lot of variables to consider with respect to waivers.
> 
> Best regards,
> Julie
> 
> From:  <Aikman-Scalese>, Anne <AAikman at lrrlaw.com>
> Date:  Thursday, October 31, 2013 6:18 PM
> To:  Julie Hedlund <julie.hedlund at icann.org>,
> "gnso-improvem-impl-sc at icann.org" <gnso-improvem-impl-sc at icann.org>
> Cc:  "Cover, Cynthia" <CCover at lrrlaw.com>
> Subject:  RE: Background on New Issues: Email Voting and Procedural Waivers
> 
> Thanks Julie ­ very helpful.  One of the issues that is problematic in
> relation to the second task is that a Councilor won¹t  know in advance of the
> meeting  whether a requirement will be waived or not and thus may not have had
> time to address the issue(s) with his/her constituency or stakeholder group.
> Multiple late motions would present a large problem in relation to any given
> meeting.  ( As to motions, it seems the ten calendar day advance notice has
> been working well in terms of the ability to brief stakeholders and receive
> input prior to GNSO Council meetings. )
>  
> We should likely look at several different types of situations that might make
> a waiver procedure desirable.    Those who have been or are sitting on GNSO
> Council now may be good resources for suggestions as to various situations
> where waiver might  be appropriate.
>  
> Anne
>  
> <image001.gif>Anne E. Aikman-Scalese, Of Counsel
> Lewis Roca Rothgerber LLP | Suite 700
> One South Church Avenue | Tucson, Arizona 85701-1611
> (T) 520.629.4428 | (F) 520.879.4725
> AAikman at LRRLaw.com <mailto:AAikman at LRRLaw.com>  | www.LRRLaw.com
> <http://www.lrrlaw.com/>
>  
> <image002.jpg>Lewis and Roca LLP is now Lewis Roca Rothgerber LLP.
>  
> 
> From: Julie Hedlund [mailto:julie.hedlund at icann.org]
> Sent: Thursday, October 31, 2013 2:58 PM
> To: Aikman-Scalese, Anne; gnso-improvem-impl-sc at icann.org
> Cc: Cover, Cynthia
> Subject: Re: Background on New Issues: Email Voting and Procedural Waivers
>  
> 
> Dear Anne,
> 
>  
> 
> As the Council noted in Durban during its wrap up meeting, the current
> procedures do not include a process for the Council to hold a vote outside of
> a meeting, although they do allow absentee voting for certain votes and under
> certain conditions, but only follow a meeting during which a vote was taken.
> Please see Section 4.0 Voting in the GNSO Council Operating Procedures (page
> 11) at: http://gnso.icann.org/en/council/op-procedures-13jun13-en.pdf
> <http://gnso.icann.org/en/council/op-procedures-13jun13-en.pdf> .  Also, the
> language in this section presumes that a vote is taking place at a meeting.
> For example, Section 4.1 Quorum says, "In order for the GNSO Council to
> initiate a vote, a quorum must be present."  The word "present" implies
> presence at a meeting.  Section 4.2 Voting Thresholds says, "For all votes
> taken, the number of eligible voters in each House shall be fixed to the
> number of seats allocated in the Bylaws (a.k.a. the denominator) and is not
> affected by the number of members present or absent at the meeting [emphasis
> added] in which the motion or other action is initiated."
> 
>  
> 
> With respect to waiving requirements, as the Council noted there are no
> provisions in the procedures.  One of the issues noted by the Council in
> Durban, for example, was that it could not consider a motion that was
> submitted after the deadline for submitting reports and motions.  Section 3.3
> Notice of Meetings states, "Reports and motions should be submitted to the
> GNSO Council for inclusion on the agenda as soon as possible, but no later
> than 23h59 Coordinated Universal Time (UTC) on the day, 10 calendardays before
> the GNSO Council meeting."  There is no language in this section that allows
> the Council to make an exception to this notice requirement.  Moreover, there
> is no general statement in the procedures that allows the Council to waive its
> procedures or as Jonathan noted below under which "formal council procedure
> can be bypassed in the event that there is no objection from the council."
> 
>  
> 
> I hope this is helpful, but please let me know if you have additional
> questions.
> 
>  
> 
> Best regards,
> 
> Julie
>  
> 
> From: <Aikman-Scalese>, Anne <AAikman at lrrlaw.com>
> Date: Thursday, October 31, 2013 3:23 PM
> To: Julie Hedlund <julie.hedlund at icann.org>, "gnso-improvem-impl-sc at icann.org"
> <gnso-improvem-impl-sc at icann.org>
> Cc: "Cover, Cynthia" <CCover at lrrlaw.com>
> Subject: RE: Background on New Issues: Email Voting and Procedural Waivers
> 
>  
> 
> Thanks Julie.   I will be coming in over Adobe from Miami Beach (INTA
> Leadership) on November 16.  ( For some reason I had an SCI call on my
> calendar yesterday, but nobody was there so my mistake.)
>  
> Regarding the two new items, can you provide us with the EXISTING rules on
> (1)Voting and (2) Waiving requirements in the Operating Procedures?
>  
> Thanks and congrats to the Charter team  on the approval of the new Charter!
> Anne
>  
> <image001.gif>Anne E. Aikman-Scalese, Of Counsel
> Lewis Roca Rothgerber LLP | Suite 700
> One South Church Avenue | Tucson, Arizona 85701-1611
> (T) 520.629.4428 | (F) 520.879.4725
> AAikman at LRRLaw.com | www.LRRLaw.com <http://www.lrrlaw.com/>
>  
> <image002.jpg>Lewis and Roca LLP is now Lewis Roca Rothgerber LLP.
>  
> 
> From:owner-gnso-improvem-impl-sc at icann.org
> [mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of Julie Hedlund
> Sent: Thursday, October 31, 2013 11:48 AM
> To: gnso-improvem-impl-sc at icann.org
> Subject: [gnso-improvem-impl-sc] Background on New Issues: Email Voting and
> Procedural Waivers
>  
> 
> Dear SCI members,
> 
>  
> 
> In our last meeting on 08 October Ron Andruff suggested it would be helpful to
> frame the two new issues the GNSO Council has asked the SCI to study  ‹ email
> voting and procedural waivers --  in the format of the questions listed in the
> charter.  In addition, for future requests as Mikey O'Conner suggested staff
> will create an online form that requesters can complete when they have issues
> to bring to the SCI.  The format in the charter is:
> 1. Which group do you represent? (E.g. Council, WG.)
> 2. To which rules or processes do you refer?
> 3. Please outline the problems
> 4. What specific changes do you propose to address the identified problems?
> 5. Do you have any additional suggestion for making the rules/processes easier
> to administer?
>  
> 
> In particular, the GNSO Council requested that the SCI should take up these
> two new issues in its Wrap Up meeting in Durban on 17 July.   Accordingly,
> I've reviewed the transcript from that meeting and pulled out the relevant
> information from the brief discussion of these topics.  I've put that
> information into the form of the questions from the charter.  Please see the
> information below and also on the wiki at:
> https://community.icann.org/display/gnsosci/16+November+2013.  These issues
> are on the agenda for the SCI's next meeting, which will be held face-to-face
> in Buenos Aires on Saturday, 16 November from 0700-0845 local time.  The GNSO
> Secretariat will send out a notice and reminders for the meeting.
> 
>  
> 
> Best Regards,
> 
>  
> 
> Julie 
> 
>  
> 
> Julie Hedlund, Policy Director
> 
>  
> 
> Email voting:
> 
> 1.    Which group do you represent? GNSO Council
> 2.    To which rules or processes do you refer? Voting
> 3.    Please outline the problems: The Council does not have a mechanism to
> conduct votes outside of a meeting.
> 1. What specific changes do you propose to address the identified problems?
> The SCI should consider whether and how the Council could vote outside of a
> meeting and under what circumstances.  Quote from Jonathan Robinson in the
> Council transcript at the Wrap Up Meeting in Durban on 18 July 2013: "So I
> wanted - an issue I wanted us to consider maybe giving to the SCI and then to
> the group or to a committee to look at is I¹d like to rethink about whether
> potentially voting by email or something like that is a possibility? I know
> we¹ve looked at it on and off over the years.ŠAnd if that would help speed
> things along it would be great to just look at that issue in just maybe we
> can¹t do it first time around obviously but for future..."  He raised this
> issue because the Council was in the process of scheduling a special meeting
> in August to conduct a vote.
> 2. Do you have any additional suggestion for making the rules/processes easier
> to administer? Voting by email could in some circumstances enable the Council
> to avoid having to schedule a special meeting for a vote that has to occur
> quickly.
>  
> 
> Waivers and/or Exceptions to the GNSO Council Operating Procedures
> 
> 1.    Which group do you represent? GNSO Council
> 2.    To which rules or processes do you refer? Submitting a motion and
> possibly other procedures
> 1. Please outline the problems: The Council does not have a mechanism to waive
> or invoke an exception to and of its operating procedures.  An example is
> whether the deadline for submitting motions could be waived in certain
> circumstances.  Quote from Jonathan Robinson in the transcript at the Wrap Up
> Meeting in Durban on 18 July 2013: "And essentially I wasn¹t empowered as
> chair by our rulebook to allow that motion to be put on the table even if
> technically although we have done it by precedent and prior practice, even if
> no one objected from the council I didn¹t really - there isn¹t really device
> in the rulebook to allow that to take place. So I personally I think that¹s an
> area we should look at is the - when and under what circumstances - formal
> council procedure can be bypassed in the event that there is no objection from
> the council?"
> 2. What specific changes do you propose to address the identified problems?
> The SCI should consider whether and how the Council could vote outside of a
> meeting and under what circumstances.
> 3. Do you have any additional suggestion for making the rules/processes easier
> to administer? A waiver mechanism could allow the Council to consider a motion
> or document after the deadline of notice/submission to the Council has passed.
>  
>  
> 
> 
> 
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>> <image001.gif>
>> <image002.jpg>
> 

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