Rafael, Are you advancing an interpretation that only challenges to Board actions solely based on "standalone" GAC advice are subject to the GAC Carveout? Greg [image: http://hilweb1/images/signature.jpg] *Gregory S. Shatan | Partner*McCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor | New York, New York 10167 T: 212-609-6873 F: 212-416-7613 gshatan @mccarter.com | www.mccarter.com BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC On Mon, Apr 11, 2016 at 5:23 AM, Perez Galindo, Rafael <RPEREZGA@minetur.es> wrote:
Dear all
Actually, the proposed development of the carve-out in the draft Bylaws is so over-complicated that it may yield errors in the text. I stand to be corrected, but there seems to be a missing part in Annex D, section 2.4 (b) (ii) (A), namely “Rejection Action” should be added before “GAC Consensus Statement”. Please penholders can you kindly check this?
We would need to strive to get a simpler text that reflects the final agreement in the CCWG, taking into account the premises outlined in the emails below, i.e., GAC advice is almost never a standalone seldom happening, but on the contrary is a frequent event, more and more rooted in community processes.
Best
Rafael
*De:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *En nombre de *Julia Katja Wolman *Enviado el:* viernes, 08 de abril de 2016 14:54 *Para:* 'Jorge.Cancio@bakom.admin.ch'; 'mark.carvell@culture.gov.uk' *CC:* 'CCWG Accountability' *Asunto:* Re: [CCWG-ACCT] CCWG - Proposed Responses to questions onDraft Bylaws
Dear Jorge,
In line with your comments, we believe it is important that we have clarity on the issues related to the GAC “carve-out”. The Bylaws text as a whole should reflect the CCWG Proposal and it is important to ensure that there is no direct/indirect extension of the “carve-out” provision in the relevant section of the CCWG Supplemental Report.
A simple and clean Bylaws text as possible is important from our point of view and referring to the carve-out in different sections of the Bylaw text has certainly not made it less complicated.
Best regards,
Julia
*Julia Katja Wolman*
*DANISH BUSINESS AUTHORITY*
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MINISTRY FOR BUSINESS AND GROWTH
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*Fra:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *På vegne af *Mark Carvell *Sendt:* 8. april 2016 13:04 *Til:* Kavouss Arasteh *Cc:* <accountability-cross-community@icann.org> *Emne:* Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws
Dear Jorge
I think this serves to underline that in the new era of transversal working with the GNSO in particular, the so-called "carve-out" from a community escalation decision in instances where the Board decision would be based solely on GAC advice, would be an extremely rare occurrence. Plus of course the GAC would be advising the community throughout such a decision stage: as has been made clear in the CCWG discussions several times, while not being able to exercise a vote due to the carve-out, governments would not be excluded from this process.
Kind regards
Mark
Mark Carvell
Global Internet Governance Policy
Department for Culture, Media and Sport
mark.carvell@culture.gov.uk
tel +44 (0) 20 7211 6062
On 8 April 2016 at 08:54, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Jorge+1
Kavousd
Sent from my iPhone
On 8 Apr 2016, at 08:52, <Jorge.Cancio@bakom.admin.ch> < Jorge.Cancio@bakom.admin.ch> wrote:
Dear all
Just to reiterate what some of us said in the chat yesterday:
- GAC Advice is almost always linked to a community process, and the tendency (and wish) is to increase this
- GAC Advice is actually quite frequent (at least three times a year)
- There is no basis in the CCWG report for isolating GAC Advice from other inputs from the community, and it would be counter to the multistakeholder fashion we work and/or we are trying to work within ICANN
Hope this helps
Regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Schaefer, Brett *Gesendet:* Donnerstag, 7. April 2016 16:31 *An:* Andrew Sullivan <ajs@anvilwalrusden.com>; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws
Thanks Andrew, these are interesting comments.
I agree on 6 and raised similar concerns in the chat Tuesday.
On 25, I agree that the problem is lack of clarity. It needs to be clear when a decision is based on GAC consensus or not.
Also, there is the danger of wrapping a decision based GAC consensus advice into a larger group of unrelated matters. Intentionally or not, it could force the EC into the undesirable position of (1) not opposing a decision based on GAC consensus advice it does not like or (2) opposing it knowing that the unrelated matters that have broad support will also be blocked with it.
This is why I suggested echoing Article 25.3 to avoid this dilemma. Article 25.3 states:
· The Board shall not combine an amendment of these Bylaws that was the result of a policy development process of a Supporting Organization (a “PDP Amendment”) with any other amendment. The Board shall indicate in the applicable Board Notice whether such amendment is a PDP Amendment.
Here is the text that I suggested:
· The Board shall not combine a decision based on or consistent with consensus GAC advice with any other decision. The Board shall indicate in the applicable Board Notice whether such a decision is based on or is consistent with consensus GAC advice.
If people have helpful edits, go at it. But I think this would separate – in a helpful way – Board decisions based on GAC consensus advice. I don’t think it would be onerous. Consensus GAC decisions are not all that frequent and, under the amended bylaws, must be indicated as such when sent to the Board.
If the GAC advice is supported elsewhere in the community this requirement should not be problematic because broadly supported advice would not pass thresholds for EC escalation. But it would allow the EC to consider and, if desired, address decisions based on GAC consensus advice in a targeted manner.
As mentioned in the chat, this in no way is an extension of the GAC carve-out. It would just help clarify when it might apply.
Best,
Brett
------------------------------
*Brett* *Schaefer*
* Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy* The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Andrew Sullivan *Sent:* Thursday, April 07, 2016 9:48 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws
Dear colleagues,
Many apologies for missing calls this week, but as I noted in Marrakesh this week is the IETF meeting and I have approximately no time.
Anyway, I have some remarks. I'm sorry these are lengthy.
Q1
On the Mission, q1, I think it is extremely unfortunate to agree to remove the restriction of "in the root zone".
I reject unequivocally the argument, "It is not true that ICANN coordinates assignment ONLY in the root zone, as such term is currently understood. ICANN’s gTLD registry and registrar agreements and policies deal substantially and primarily with issues relating to assignment of names at the second (and in some cases lower) levels of the DNS." ICANN's gTLD registry and registrar agreements an policies deal susbtantially and primarily with how _those registries and registrars_ coordinate assignment in zones outside the root zone. That is, ICANN's agreements are a meta-requirement on how other people do co-ordination in the DNS, and do not actualy perform the co-ordination
I know that this seems like a fine distinction. But it's important to keep it in mind because the language that have been in the bylaws historically, and that the CCWG has agreed to restore, is the very basis on which various people around the Internet mistake ICANN for the Internet Police. By removing the restriction to the root zone, we are once again freeing ICANN to assert control down the DNS -- a control that is very much inconsistent with the distributed authority design of the DNS.
Q3
It might be worth observing also that, since the requester is the person who asked for the transcripts and recordings, presumably the requester could be asked about certain redactions due to the issues outlined.
Q6
The proposal for the community just to endorse whatever the board decides here strikes me as potentially risky. Supposed the community replaces a recalled board member with a new one that is less accommodating of a prevailing majority of the Board. The Board would be able to remove that new director with a 75% majority. If the EC does not have the ability to reject the Board's decision to remove, then there could be a procedural deadlock that could only be ameliorated by a complete replacement of the Board. That seems undesirable.
Q17
I believe the requested addition is overspecification. It will simply yield disputes about whether a given recommendation is limited in the relevant way.
Q25
The document says
Initially, “solely” was added to tie the Petition Notice to the GAC Consensus Board Resolution. For example, the ICANN Budget is an amalgamation of many different inputs. If a particular expenditure is tangentially related to GAC advice, then the GAC should not be removed from voting on that petition.
I don't understand this argument. There are two possibilities: either the expenditure is solely related to GAC advice (in which case, whether it's "tangential" is irrelevant) or it is not. If it is not, then the GAC exclusion is not entailed. If it is solely related to GAC advice, then I don't get the claim above that the GAC should not be excluded -- that's the whole point of the "carve out".
I hope these remarks are useful. Please see also the remarks that I sent in collaboration with my colleagues on the IAB.
Best regards,
A
On Wed, Apr 06, 2016 at 06:30:14PM -0400, Bernard Turcotte wrote:
All,
Co-chairs and rapporteurs have reviewed and proposed answers to all questions some based on the results of the Tuesday April 5th meeting of the CCWG-Accountability.
These are attached in preparation for the Thursday April 7th meeting of the CCWG-Accountability on this topic.
The CCWG-Accountability Co-chairs Mathieu, Thomas and Leon
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