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

Olga Cavalli olgacavalli at gmail.com
Fri Feb 5 11:59:19 UTC 2016


Dear all,

I want to thank my colleague Rafael from Spain for including in his email
details of similar concerns we have about Becky´s proposal.

Any clarification will be helpful.

Best regards

Olga

2016-02-05 6:58 GMT-03:00 Perez Galindo, Rafael <RPEREZGA at minetur.es>:

> 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> on behalf of
> "Mueller, Milton L" <milton at gatech.edu>
> *Date: *Thursday 4 February 2016 at 2:23 p.m.
> *To: *"Burr, Becky" <Becky.Burr at neustar.biz>, Kavouss Arasteh <
> kavouss.arasteh at gmail.com>, "accountability-cross-community at icann.org" <
> accountability-cross-community at icann.org>, Mathieu Weill <
> mathieu.weill at afnic.fr>, Thomas Rickert <thomas at rickert.net>, León Felipe
> Sánchez Ambía <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
> <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>;
> accountability-cross-community at icann.org; Mathieu Weill <
> Mathieu.Weill at afnic.fr>; Thomas Rickert <thomas at rickert.net>; León Felipe
> Sánchez Ambía <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>
> *Date: *Wednesday, February 3, 2016 at 4:56 PM
> *To: *Accountability Community <accountability-cross-community at icann.org>,
> Becky Burr <becky.burr at neustar.biz>, Mathieu Weill <Mathieu.Weill at afnic.fr>,
> Thomas Rickert <thomas at rickert.net>, León Felipe Sánchez Ambía <
> 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 (2**nd**
> 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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