[CCWG-ACCT] Notice of polling of members on Recommendation 11 at the next meeting of the CCWG February 2nd 06:00UTC

Greg Shatan gregshatanipc at gmail.com
Mon Feb 1 05:56:47 UTC 2016

Dear Co-Chairs,

I have to say that I do not agree entirely with your reading of the charter
reflected in the following statement:

According to our Charter, the co-chairs shall be responsible for
designating each position as having one of the following designations:

a)      Full Consensus - a position where no minority disagrees; identified
by an absence of objection

b)     Consensus – a position where a small minority disagrees, but most

Accordingly, determination of consensus will be based on the level of
objection, not support.

Specifically, the above appears to be correct for determining Full
Consensus (distinguished by "an absence of objection").   However, the
above appears to be incorrect for determining Consensus, which requires
that "most agree," in addition to requiring that only "a small minority
disagrees."  In other words, a finding of "Consensus" requires both a
minimum level of *support* ("most agree") and a maximum level of
*objection* (only
"a small minority disagrees").

On this basis, if there are any objections, the responses of  "most"
members must indicate agreement, rather than a mere lack of objection, to
support a finding of Consensus.  Abstentions, no-shows, and "neither
support nor object" responses would not count toward Consensus.

I am hopeful that we could still make progress toward consensus in the next
24 hours such that a "consensus call" is unnecessary.  Nonetheless, if it
comes to a poll, I hope that you will adjust your methodology accordingly.

Finally, I will reiterate my suggestion that, if a poll is conducted, it
also tests the level of support and objection for the "option packages"
that have emerged since the Third Draft Report was published over two
months ago.

Best regards,


On Sat, Jan 30, 2016 at 3:47 PM, Mathieu Weill <mathieu.weill at afnic.fr>

> Dear Colleagues,
> Our usual approach is not achieving consensus on a way forward with
> Recommendation 11.  So, as discussed at our last meeting, we will be
> conducting a poll of Members on this question at our next meeting.
> We will only be conducting a poll on third draft Recommendation 11, with
> the current minor amendments, given it is the text presented in the third
> draft and no alternative so far has demonstrated an ability to bring the
> different perspectives any closer.
> Exceptionally and unfortunately we will only be polling Members of the
> CCWG as defined and permitted in our charter.
> According to our Charter, the co-chairs shall be responsible for
> designating each position as having one of the following designations:
> a)      Full Consensus - a position where no minority disagrees;
> identified by an absence of objection
> b)     Consensus – a position where a small minority disagrees, but most
> agree
> Accordingly, determination of consensus will be based on the level of
> objection, not support.
> In the absence of Full Consensus, the co chairs will allow for the
> submission of minority viewpoint(s)which will be included in the
> Suppplemental report.
> In the absence of Consensus, we will need to assess what process the group
> will follow to rebuild consensus, or whether the absence of Consensus
> should be reported to the Chartering Organizations.
> The polling question will be:
> *Do you object to including Recommendation 11 as written below in the
> CCWG-Accountability’s supplemental report to be submitted for Chartering
> Organisation approval?*
> Members unable to attend the meeting in-person may appoint an alternate.
> Alternates will be eligible if they are a current participant of the
> CCWG-Accountability. Alternates must be announced prior to the call to
> acct-staff at icann.org.
> *                             *
>                 *
> Recommendation 11 is designed to address Stress Test 18, which identified
> that GAC may change its method of decision-making to something other than
> the method it now uses: general agreement in the absence of any formal
> objections.  Today’s bylaws would still require the ICANN board to “try to
> find a mutually acceptable solution,” even for GAC advice that was opposed
> by a significant number of governments.  To address this Stress Test,
> Recommendation 11 currently reads:
> 1        The CCWG-Accountability recommends that the following changes be
> made to the ICANN Bylaws Article XI, Section 2:
> *j. 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
> 2/3 of the Board, 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.*
> 2        Notes:
> The GAC has the autonomy to refine its operating procedures to specify how
> objections are raised and considered (for example, disallowing a single
> country to continue an objection on the same issue if no other countries
> will join in an objection). When transmitting consensus advice to the Board
> for which the GAC seeks to receive special consideration, the GAC has the
> obligation to confirm the lack of any formal objection.
> This recommendation is intended only to limit the conditions under which
> the ICANN board and GAC must “try to find a mutually acceptable solution”,
> as required in ICANN’s current bylaws.  This recommendation shall not
> create any new obligations for ICANN board to consider, vote upon, or to
> implement GAC advice, relative to the bylaws in effect prior to the IANA
> transition.
> Insert this requirement for all ACs: A rationale must accompany any formal
> advice provided by an Advisory Committee to the ICANN Board. The Board
> shall have the responsibility to determine whether the rationale provided
> is adequate to enable determination of whether following that advice would
> be consistent with ICANN bylaws.
> To address the concern of GAC advice inconsistent with bylaws, add this
> clarification for legal counsel to consider when drafting bylaws language:
> ICANN cannot take action - based on advice or otherwise – that is
> inconsistent with Bylaws.  While the GAC is not restricted as to the advice
> it can offer to ICANN, it is clear that ICANN may not take action that is
> inconsistent with its Bylaws. Any aggrieved party, or the empowered
> community, will have standing to bring an IRP to challenge whether a board
> action or inaction is inconsistent with its bylaws, even if the board acted
> on GAC advice.
> The language proposed in recommendations for ICANN Bylaw revisions are
> conceptual in nature at this stage. The CCWG-Accountability’s external
> legal counsel and the ICANN legal team will draft final language for these
> revisions to the Articles of Incorporation and Bylaws (Fundamental/Standard
> Bylaws).
> As a reminder, Recommendation 11 obtained the following results in the
> public comment period on the third draft of the CCWG-Accountability:
> ·         Support 35
> ·         Against 19
> ·         Neutral 2
> ·         N/A 26
> Chartering Organization responses to the Third draft are summarized as:
> ·         GNSO : “Little support; strong opposition” to Rec 11 as written
> in Third Draft Proposal. “Most SG/Cs do not support” raising threshold for
> Board vote to reject GAC advice. Serious concern over lack of specificity
> in relation of requirements for GAC advice (such as provision of rationale)
> and possibility that this recommendation, if adopted, could unduly change
> nature of Board-GAC relationship and/or position of GAC vis-à-vis other
> SO/ACs. Several SG/Cs believe any recommendation should retain current
> flexibility in Bylaws where Board is not required to undertake a formal
> vote in order to reject GAC advice.
> ·         ccNSO: no specific comment
> ·         ASO: In general, we find the current text acceptable.
> Additionally, we would like to make the following remarks: We would support
> a text that clarifies today’s practices and does not substantially change
> the GAC's role and how its advice is treated by the Board or substantially
> strengthen obligations for the Board to consider the GAC advice. We would
> not support a text that cannot be acceptable by the NTIA.
> ·         GAC: There is no consensus within the GAC so far to support or
> object to the text contained in Recommendation 11 of the 3rd Draft Proposal.
> ·         ALAC: supports the recommendation
> SSAC: no specific comment
> Best,
> Leon Thomas & Mathieu
> CCWG Accountability Co-chairs
> _______________________________________________
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> Accountability-Cross-Community at icann.org
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