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

[Mathieu Weill]

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.

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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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