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

Julia Katja Wolman jukacz at erst.dk
Mon Feb 1 14:27:30 UTC 2016

Dear Co-chairs, all
I have a hard stop at 06.35 UTC tomorrow, so if it is decided to carry on with the poll of Members regarding Rec 11 at the call tomorrow and should I have to leave the call before the polling starts, I hereby appoint Finn Petersen (participant, GAC DK) as my alternate. I will do my best to follow the rest of the call via phone bridge but the connection on the train is very poor.
Best regards,

Julia Katja Wolman


Dahlerups Pakhus
Langelinie Allé 17
DK-2100 København Ø
Telephone: +45 3529 1000
Direct: +45 35291308
E-mail: jukacz at erst.dk


P Please consider the environment before printing this email.

Fra: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] På vegne af Mathieu Weill
Sendt: 30. januar 2016 21:48
Til: 'CCWG Accountability'
Emne: [CCWG-ACCT] Notice of polling of members on Recommendation 11 at the next meeting of the CCWG February 2nd 06:00UTC

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<mailto: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
Leon Thomas & Mathieu
CCWG Accountability Co-chairs
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