[CCWG-ACCT] Aresteh proposal to resolve Recommendation 1 and 11 issues

[Perez Galindo, Rafael]

Dear all

Before we can conduct our internal consultations in order to try to get support for this proposal, there are still a couple of elements in Becky’s idea that remain unclear, and hence we kindly ask for clarification, in order get a full picture and avoid possible unintended side-effects. The questions are:

1. We have previously discussed it, but we still fail to understand why this “carve-out” is only applicable to the GAC. If this measure is foreseen to avoid the “two-bites-at-the-apple” situation, for instance the GNSO is as well in a position of being “judge and part” when it comes to decisions of the Board based on a PDP. In these cases, the GNSO is part (has proposed a policy and the Board has accepted it) and judge (through its participation in the EC, it can participate through its vote in the rejecting of the challenge to this policy). This situation is unfair to the rest of SO/ACs. What are the reasons for such a privilege? In this vein, although the GAC has a “mutually agreeable procedure to TRY to find a solution”, it CANNOT force the Board to act according to its advice, therefore a Board decision based on GAC Advice is as free as a Board decision based on GNSO or CCNSO PDP or GNSO Guidance (all three with a 2/3 threshold for rejection by ICANN Board). Why is the GAC singled out then?

2. If this “carve-out” were to be accepted, how would the exclusion of the GAC from a community decision-making process be triggered? Who would decide on such things? Who would control the legality of such a decision? The carve-out refers generically to “Board decisions” to “implement GAC advice”. But we need to bear in mind that Board decisions very often rely on many different inputs for any decision (a PDP, advice from advisory committees, including the GAC, legal advice, etc.), and rarely only stem exclusively from GAC advice. Would this “carve-out” mean that where there is a Board decision based on such multiple sources, only one of them being a GAC advice, the GAC would be excluded from any community power related to such a Board decision? How do we make sure that if such a “carve-out” is accepted it has not these effects, and ONLY applies when the Board acts based ONLY on GAC advice?

3. What happens if a Board decision is based on GAC advice which in turn is based on international law, relevant national law and/or important reasons of public policy? We should remember that under Rec11 GAC will be obliged to act under a “no formal objection rule” (full consensus). Should the community be able to overturn such a Board decision without giving the possibility to the GAC to intervene in such a process (based on a GAC consensus)?

Thank you for possible clarifications.
Best
Rafael



De: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] En nombre de James Gannon
Enviado el: jueves, 04 de febrero de 2016 20:50
Para: Mueller, Milton L; Burr, Becky; Kavouss Arasteh; accountability-cross-community at icann.org; Mathieu Weill; Thomas Rickert; León Felipe Sánchez Ambía
Asunto: Re: [CCWG-ACCT] Aresteh proposal to resolve Recommendation 1 and 11 issues

Also lending my support.

James

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of "Mueller, Milton L" <milton at gatech.edu<mailto:milton at gatech.edu>>
Date: Thursday 4 February 2016 at 2:23 p.m.
To: "Burr, Becky" <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>>, Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>>, "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Subject: Re: [CCWG-ACCT] Aresteh proposal to resolve Recommendation 1 and 11 issues

I also support this compromise proposal
--MM

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Burr, Becky
Sent: Wednesday, February 3, 2016 6:19 PM
To: Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>>; accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>; Mathieu Weill <Mathieu.Weill at afnic.fr<mailto:Mathieu.Weill at afnic.fr>>; Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>; León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Subject: [CCWG-ACCT] Aresteh proposal to resolve Recommendation 1 and 11 issues

Thank you Kavouss for this suggested approach.  We have all been working very hard and in good faith for over a year to develop a consensus proposal.  My understanding is that this is designed to resolve all open issues in Recommendation 1 and 11.  I am supportive of this package deal, as described below (the description below was also included in Kavouss’ email).  I appreciate the collaborative spirit we have brought to the table and hope we can use our Dedicated Rec. 11 call tomorrow to reach consensus!


1. Modify Rec #1/Annex 1 and Rec #2/Annex 2
·      Add the following to the end of Paragraph 23 in Rec #1/Annex 1:

The GAC may not, however, participate as a decision maker in the Empowered Community’s consideration of the exercise a community power for the purpose of challenging or blocking the Board’s implementation of GAC Advice. In such cases, the GAC remains free to participate in community deliberations in an advisory capacity, but its views will not count towards or against otherwise agreed thresholds needed to initiate a conference call, convene a Community Forum, or exercise a specific Community Power.  This carve out preserves the ICANN Board’s unique obligation to work with the GAC try to find a mutually acceptable solution to implementation of GAC Advice supported by consensus (as defined in Rec. #11) while protecting the community’s power to challenge such Board decisions.
·      Modify the Table in Rec. #2/Annex 2 to reflect this carve out and add the following language to cover situations that would otherwise require the support of four SOs or ACs:

The CCWG-Accountability also recommends that in a situation where the GAC may not participate as a Decisional AC because the community power is proposed to be used to challenge the Board’s implementation of GAC Advice and the threshold is set at four in support, the power will still be validly exercised if three are in support and no more than one objects.
 2.   Modify Recommendation 11 to reflect 60% threshold for rejection of GAC advice by Board, with note to drafters that supermajority requirement is not intended to create any presumption or modify the standard applied by the Board in reviewing GAC Advice.
     3. During dedicated Recommendation 11 meetings (4 February and 8 February)

  *    Discuss and accept Recommendation 1 with change described above as first final reading;
  *    Discuss and accept Recommendation 2 with change described above as first final reading; and
  *   Discuss and accept Recommendation 11 with changes described above as first final reading.
4.   Submit the package deal to the CCWG for final consideration (2nd final reading) at its conference call scheduled for 9 February, noting delicate balance requiring compromise on all sides to reach consensus and recommending adoption “as is” (assuming consensus on Dedicated Recommendation 11 calls).



J. Beckwith Burr
Neustar, Inc./Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office:+1.202.533.2932  Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz>

From: Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>>
Date: Wednesday, February 3, 2016 at 4:56 PM
To: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, Mathieu Weill <Mathieu.Weill at afnic.fr<mailto:Mathieu.Weill at afnic.fr>>, Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Subject: <no subject>


Dear Esteemed and respectful  CCWG Colleagues

 First of all, allow me to share the following thought with you:
We are in a crucial time for the CCWG requiring to act in a coordinated  manner  on the upcoming Devoted Calls with the aim of assisting the CCWG  in finalizing Recommendation 11,including some adjustments in Recommendation 1  which enable CCWG to assemble the Supplementary Report. This Report needs to be  issued  well in advance of the Marrakech meeting if the overall timeline for IANA stewardship transition is to be maintained. Given that the CCWG is working hard to agree a compromise in the current round of virtual meetings,

I wish to reiterate what I mentioned at various occasions that we need to be pragmatic and tolerable, to be more open to any possible set of solution with a view to find a compromise and not merely insist on the wishes, requirements and expectations of every single SO and AC but on the contrary make utmost efforts to satisfy ,to the extent practiceable and possible  the entire community.

We are aware of the sensitive elements of Recommendation 1 as well as those of Recommendation 11

We have made considerable progress to almost bring the views of the interested parties together.

However, there are some more bits to be done. In ICT network connection, the Last kilometer or perhaps last hundred meters of the connection  are sometimes more complex to  compared with the entire network to provide an overall inclusive connection.

We have succeeded to find workable solutions for many of these last kilometers in various area .It remains to finish that last kilometer which located in a rocky and mountainous area

We need to also make out utmost effort to move forward from our current position which is different from each other and not rule out compromise as a backward step. Our role  is to make concession towards each other position  .We need to take every possible initiative to move forward to  timely complete this proposal on enhanced accountability.

Frankly speaking and from a professional view point, and as a participant of CCWG and Liaison of ICG to CCWG, I think we should really be more open, constructively, objectively and efficiently

To this effect , I wish to suggest a package deal which needs to be accepted or rejected as a whole without being disintegrated/ decomposed .

The Pack Deal is simple straightforward and practical

  1.  Modify Recommendation 1 to add the language as proposed  by Beckie
  2.  Maintain the rest of Recommendation 1 Unchanged
  3.  Accept the 60% threshold for GAC advice ,if to be rejected by the Board
  4.  Maintain the rest of Recommendation  11 Unchanged
  5.  No other  discussion ,what so ever, on these two Recommendation
  6.  Submit the Package Deal to the forthcoming CCWG scheduled to be held on 09 February with a note from Beckie indicating that this is a delicate balance ,a sensitive compromise and recommend to the CCWG to take it as it is

I have no intention of being presumptuous about this, and you are of course entirely free to reject my suggestions.  Please note that my proposal requires a change to Recommendation 1 and a conforming change to Recommendation 2.  To be consistent with our standard procedures, I suggest we conduct 1rst final readings of the compromise during our Dedicated Rec 11 calls (scheduled for 4 Feb and 8 Feb) and the 2nd final reading during our regular call on 9 Feb.  Please note that I have also included Malcolm’s requested clarification regarding no changes with respect to presumptions or standard of review.  I do not believe that this text is strictly necessary, but in the interests of getting everyone on board I think it makes sense to include it.

Package Deal

1. Modify Rec #1/Annex 1 and Rec #2/Annex 2



·      Add the following to the end of Paragraph 23 in Rec #1/Annex 1:



The GAC may not, however, participate as a decision maker in the Empowered Community’s consideration of the exercise a community power for the purpose of challenging or blocking the Board’s implementation of GAC Advice. In such cases, the GAC remains free to participate in community deliberations in an advisory capacity, but its views will not count towards or against otherwise agreed thresholds needed to initiate a conference call, convene a Community Forum, or exercise a specific Community Power.  This carve out preserves the ICANN Board’s unique obligation to work with the GAC try to find a mutually acceptable solution to implementation of GAC Advice supported by consensus (as defined in Rec. #11) while protecting the community’s power to challenge such Board decisions.



·      Modify the Table in Rec. #2/Annex 2 to reflect this carve out and add the following language to cover situations that would otherwise require the support of four SOs or ACs:



The CCWG-Accountability also recommends that in a situation where the GAC may not participate as a Decisional AC because the community power is proposed to be used to challenge the Board’s implementation of GAC Advice and the threshold is set at four in support, the power will still be validly exercised if three are in support and no more than one objects.



2.   Modify Recommendation 11 to reflect 60% threshold for rejection of GAC advice by Board, with note to drafters that supermajority requirement is not intended to create any presumption or modify the standard applied by the Board in reviewing GAC Advice.



3. During dedicated Recommendation 11 meetings (4 February and 8 February)



·      Discuss and accept Recommendation 1 with change described above as first final reading;

·      Discuss and accept Recommendation 2 with change described above as first final reading; and

·      Discuss and accept Recommendation 11 with changes described above as first final reading.



4.   Submit the package deal to the CCWG for final consideration (2nd final reading) at its conference call scheduled for 9 February, noting delicate balance requiring compromise on all sides to reach consensus and recommending adoption “as is” (assuming consensus on Dedicated Recommendation 11 calls).

 Kavouss
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