[CCWG-ACCT] [CWG-Stewardship] [bylaws-coord] DRAFT NEW ICANN BYLAWS - 2 April 2016 version - SCWG

[Andrew Sullivan]

Dear colleagues,

Particularly given the nature of this discussion, I want to point out
that I'm just a participant and have no vote here :)

On Sat, Apr 09, 2016 at 06:41:30PM -0400, Greg Shatan wrote:
> I agree with the concerns raised here regarding the use of a majority level
> of decision-making in the SCWG.  The registries (with 6 seats) nearly hold
> a majority, and as Seun notes, the registries/registrars do hold a
> majority.  This by itself is probably enough to disqualify a majority as an
> appropriate measure.
> 
> Consensus would be far more appropriate (I don't think this needs to be
> "full consensus," however).

I'm hanging this on Greg's message because I think he makes an
important point, but one where I'd put some different emphasis.  Let
us recall that the bylaws-writing process is supposed to implement the
community proposals, and not change them.  So, what does the community
proposal say about this?

There are two relevant bits that come from the CWG's proposal Annex L.
The first is this sentence: "The SCWG will follow the overall
guidelines and procedures for ICANN Cross Community Working Groups."
The second is the repeated emphasis in Annex L on supermajorities of
the GNSO and ccNSO.

As far as I understand it, the normal rules for an ICANN CCWG are that
consensus is preferable, but that otherwise voting members can make a
decision by majority.  If we are going to deviate from that, then, we
need to have some interpretation that is still consistent with the
proposal, because the proposal is what the community has already
agreed to.  There is no hint in the proposal that a supermajority of
anyone except the ccNSO and GNSO is required, so it is not in keeping
with the proposal to impose additional requirements now.

It seems to me, however, that the tradition of "majority fallback" in
CCWGs could be of use here.  Implementation could be a fallback
majority not just of the membership, but also reqiure the majority to
come from a majority of the appointing organizations.  There are ten
organizations that appoint voting members and 13 voting members; so
under the current arrangement, when voting were required it would need
at least 7 votes appointed by at least 6 different bodies.  I suspect
this is a deviation from the proposal in Annex L, but it seems to me
to be in the spirit of Annex L and would doubtless be an acceptable
way to charter at least some CCWGs.

The counter argument might be that this threshold is now too high.
But the calculation that has made people worried is that, assuming
registries and registrars decide to form a bloc, they could act alone.
On the same bloc theory, registries and registrars already comprise
appointments from 4 organizations.  So only two more votes would be
needed (making the effective majority for separation 9 when all
registries and registrars vote the same way).

Best regards,

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com