[gnso-improvem-impl-sc] GNSO WG Definitions of Decision-Making Levels

Aikman-Scalese, Anne AAikman at lrrlaw.com
Tue Apr 8 17:24:15 UTC 2014

Thanks Greg.  I think this is a helpful observation.   Regarding "day job", regrettably mine conflicts for today's SCI call .

Regarding the e-mail voting issues, I had circulated in January a redline with questions about that process.  It is attached again, although it may be impacted by some suggestions that were made regarding the 10 day waiver recommendation.  In this regard, my comment is that e-mail voting is not appropriate for unanimous consent to waive the 10 day rule since it does not seem to me that it could meet the litmus test of "participation in full discussion"  that applies to e-mail voting.

With respect to both the consensus levels and the waiver of the ten day rule, whatever is determined in today's call will have to be taken back to IPC for formal input.

I also think, as I said at the end of the Singapore meeting, that Thomas, Avri, and I need to schedule a separate call on the e-mail voting issue as a subgroup.  Perhaps we could ask staff to assist in scheduling the call?

Very sorry I cannot participate today but I must attend a meeting of all lawyers in my firm's Tucson office occurring at the same hour.
Thank you,

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
-----Original Message-----
From: owner-gnso-improvem-impl-sc at icann.org [mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of Shatan, Gregory S.
Sent: Tuesday, April 08, 2014 8:23 AM
To: 'Amr Elsadr'; Marika Konings
Cc: <gnso-improvem-impl-sc at icann.org>
Subject: RE: [gnso-improvem-impl-sc] GNSO WG Definitions of Decision-Making Levels

I've been giving this some thought (which unfortunately I kept to myself).  There are really 2 problems here.

1.  Dealing with the "consensus against" problem.  This is our explicit assignment.
2.  The Decision-Making Levels are not well-drafted in certain places.  There is inconsistent use of language (different words used to mean the same thing), inconsistent use of "unstated phrases" (leaving out the same or similar phrase when reiterating a point) creating ambiguity, etc.

We are trying to solve both problems at the same time.  We started down this road because the fix needs to change all of the levels (except perhaps Divergence).  Then, slowly (as we became more comfortable with the document), we started to see the list's infirmities and tried to resolve them.  In my day job, I call this "drafting creep."  The problem with drafting creep is that it opens up issues beyond the one you were fixing, and intertwines those two sets of issues in a way that complicates review by others.  This is what Marika is seeing.

I think we need to reverse course for the moment.  I think both (1) and (2) above are problems that need to be addressed.  But only (1) is really on our plate.

 I'll make the moderately radical suggestion that we keep our hands off the current levels (in spite of their issues) and address the "consensus against" issue (which does affect all the levels) in a footnote (Amr's alternative 3, below).

At some later time, we can then follow up and improve the drafting of the levels, separate from dealing with the "consensus against" issue.

Just my thoughts.  I can try to draft a footnote today, but it's a bit of a messy day (3 ICANN/IG calls plus that "day job"), so I'm not sure if I can.

Greg Shatan

Gregory S. Shatan
Reed Smith LLP
599 Lexington Avenue
New York, NY 10022
212.549.0275 (Phone)
917.816.6428 (Mobile)
212.521.5450 (Fax)
gshatan at reedsmith.com

-----Original Message-----
From: owner-gnso-improvem-impl-sc at icann.org [mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of Amr Elsadr
Sent: Tuesday, April 08, 2014 7:40 AM
To: Marika Konings
Cc: <gnso-improvem-impl-sc at icann.org>
Subject: Re: [gnso-improvem-impl-sc] GNSO WG Definitions of Decision-Making Levels

Thanks for the feedback, Marika. I’d be grateful if you pointed out the specifics in the document on today’s call. I have to admit, I’ve been struggling with it. I’m no lawyer…, that’s for sure. :)

In any case, the sub-team’s intent has always been to address revisions to take into consideration when consensus against WG recommendations is the situation, as divergence does not reflect this situation (as was the case with the IGO/INGO WG). That’s probably why the definition of divergence is the only one that hasn’t really been substantively changed. The focus has been on the rest so far.

Still…, we do have the three ways to move forward that Ron had previously suggested:

1. Recommend changes in the definitions to the GNSO Council when the SCI finalises them.
2. To not recommend any changes at this time, and postpone changes to see if they indeed become necessary in the future (although there have been some recommendations not to do this).
3. The third option is to not change the definitions, but instead to add a footnote to them indicating that the decision-making levels could be used when consensus is for or against WG recommendations.

Thanks again, Marika.


On Apr 8, 2014, at 1:24 PM, Marika Konings <marika.konings at icann.org> wrote:

> Apologies for having missed the F2F meeting in Singapore, but how do
> these changes address the specific question that was put forward by
> the GNSO Council on behalf of the IGO/INGO PDP WG: 'and specifically
> requests the SCI to review and, if deemed appropriate, recommend
> revised or additional language to apply to situations where working
> groups may reach sufficient consensus against a particular proposal
> such that the appropriate consensus level cannot accurately be
> described as No Consensus/Divergence'? The additions / edits may be
> helpful clarifications but they seem to go beyond the scope of the
> specific question put forward to the SCI. But maybe I am missing
> something, so I am looking forward to discussing this further on the call later today.
> Best regards,
> Marika
> On 08/04/14 13:12, "Amr Elsadr" <aelsadr at egyptig.org> wrote:
>> Hi,
>> I¹ve taken a stab at some very slight word-smithing on the last draft
>> of the WG consensus levels discussed at our F2F in Singapore. I¹ve
>> tried to capture the comments made, and a little more and look
>> forward to a discussion on this during today¹s call.
>> I have admittedly done this only today, so have not had time to
>> consult with the rest of the sub-team. Greg, Thomas, CintraŠ, my apologies.
>> Thanks.
>> Amr
> <default.xml>

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