[Gnso-newgtld-wg] Consensus on Recommendations

[trachtenbergm at gtlaw.com]

+1

Marc H. Trachtenberg
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Chair, Internet, Domain Name, e-Commerce and Social Media Practice
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[Greenberg Traurig]

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Alan Greenberg
Sent: Wednesday, December 23, 2020 12:47 AM
To: New gTLD SubPro <gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Consensus on Recommendations

*EXTERNAL TO GT*
I raised an issue during the last call and I wanted to repeat it here for those who were not on the call and have not reviewed the recording.

Jeff described how the leadership team will assess the level of consensus on recommendations (packages of recommendations if I recall correctly, but that is not relevant here) and state them clearly in the final report.

For recommendation that achieve a Full Consensus or Consensus (as defined in the PDP Charter), that is fine. But I have a great problem if a "Recommendation" does not achieve either level of Consensus and is still labelled as a "Recommendation".

Historically most Recommendations coming out of PDPs have WG consensus. Until recently, for the few cases where a "Recommendation" did not have WG consensus, the GNSO Council chose to not endorse it and did not pass it on to the Board.

That changed recently with the EPDP where the GNSO Council ratified recommendations that did not achieve consensus, including even one with Divergent opinions (defined in the WG Charter as "No Consensus").

There is no way of knowing how the Board will treat such recommendations, nor how the CURRENT GNSO will react to receiving recommendation s from us that do not have consensus. But I feel that we should be taking a prudent stance going forward.

We have been very careful only to draft recommendations that seem to have WG consensus. However, until we do the final assessment, we do not know if there is really agreement or not.

If there is not agreement, that we must delete them as Recommendations. We still of course need to fully document the discussion AND the difference of opinion. But to keep them as a formal recommendation that might be accepted by the GNSO Council and the Board violates our basic operating principles.

I think that many of us would react poorly to finding a specific recommendation on closed generics where clearly we do NOT have consensus. Why would it be more acceptable to keep other recommendations where the final assessment is that despite what we thought earlier, there is similarly no consensus on the recommendation?

Alan

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