All

(Note this email is based on the one sent Friday but includes the clarifications developed on the Monday 8 February call)

As agreed on the call

Friday 5 February

please find the new reference text for Recommendation 11 which will be considered by the CCWG at its next full meeting on February 9th (12:00 UTC) to confirm, or not, if it is a consensus position of the CCWG-Accountability.

To assist you in considering the proposal you will find below a summary of the changes that are being recommended

as well as the clarifications agreed to on the special call of Monday 8 February.

In addition to this, and given these changes require modifications to Recommendations 1 and 2, which have been finalized, please find attached the finalized versions of Recommendations 1 and 2 with the proposed changes noted in red line. Given Recommendation 11 is not yet finalized the current draft which includes the most recent amendments (no new obligations, rationale and conformity with ICANN Bylaws)

is provided with the changes from 2/3rds to 60% being red lined in this version. A proposed draft text in para 22 has been added

in red line

to explain the changes in Recommendation 11

Summary of changes:

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:

(para 51) 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. (60% replaced 2/3rds where appropriate – added draft para 22 for consistency)

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).

CCWG-Accountability - Clarifications for Recommendation 11 Compromise proposal (Kavous-Becky)

·The carve out may only apply to community challenges to ICANN board decisions that were based on GAC advice to the Board, where that GAC advice was "approved by general agreement in the absence of any formal objection.”. The carve out would not apply to challenges based on GAC advice that was not “approved by general agreement in the absence of any formal objection.
·Identifying GAC advice applicable to use of the carve out:

o GAC confirmation - Would apply to GAC advice to the Board that was designated as consensus advice that was "approved by general agreement in the absence of any formal objection.”

o Board confirmation - Could only apply to board decisions where the Board states in its required rationale that its decision was mainly or solely based on GAC advice that was "approved by general agreement in the absence of any formal objection.”.

o Should the petitioning SO or AC consider that the carve-out is applicable, it needs to state so while petitioning the other decisional participants, and needs to clearly identify which consensus GAC advice and which Board decisions support proposing using the carve out. The community power requested in the petition would need to be approved according to the decision thresholds indicated for the Empowered Community.

Timing for invoking the carve out – The use of this carve out would need to be included in the petition to the Empowered Community, and would therefore be subject to the timing restrictions applicable to the escalation process (e.g. requiring a decisional participant to approve a petition within 21 days of a Board decision being published). While this addresses timing of the board challenge, note that the board decision that is being challenged could be based on standing advice that the GAC had provided at an earlier date.