Notice of polling of members on Recommendation 11 at the next meeting of the CCWG February 2nd 06:00UTC
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-Accountabilitys 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@icann.org. * * * 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. Todays 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 ICANNs 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-Accountabilitys 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 todays 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
Matthieu, As I discussed in an email on Friday, those totals are inconsistent with the actual categorization in column C in the Excel sheet circulated Jan 6. Moreover, they don't accurately reflect a number of comments or positions as expressed by the commenters. I suggest asking for a corrected version or ignoring them. Regards, 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<http://heritage.org/> __________ On Jan 30, 2016, at 3:50 PM, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> wrote: 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@icann.org<mailto:acct-staff@icann.org>. * * * 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, You only list 2 designations: Full Consensus and Consensus. I am assuming it is possible that you could get Less than Consensus (don't expect it or wish for it, but it is possible). Should that be listed as a possibility as well? avri On 30-Jan-16 15:47, Mathieu Weill wrote:
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@icann.org <mailto:acct-staff@icann.org>.
* *
*
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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I agree with Avri. My reading is that there is currently not consensus on Rec 11. However, you may also want to make the options clearer. I see a lot of people saying, "I could accept Rec 11 if [this or that small change was made]. How does the polling account for that? If this is a binary vote, ONLY yes or no, I am pretty sure you won't get consensus on Rec 11. --MM
-----Original Message----- You only list 2 designations: Full Consensus and Consensus. I am assuming it is possible that you could get Less than Consensus (don't expect it or wish for it, but it is possible). Should that be listed as a possibility as well?
avri
On 30-Jan-16 15:47, Mathieu Weill wrote:
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@icann.org <mailto:acct-staff@icann.org>.
* *
*
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree with Milton. I think it would be prudent to offer a series of "option packages" and take a "binary vote" on objection to each of them. I think the results could help illuminate our path forward, at the very least. There are a few clear option packages that have emerged since the third draft, and perhaps a few recombination that might be useful to consider as well. Building consensus is an iterative process. I suggest we make use of our recent work rather than discarding it. Greg On Sunday, January 31, 2016, Mueller, Milton L <milton@gatech.edu> wrote:
I agree with Avri. My reading is that there is currently not consensus on Rec 11.
However, you may also want to make the options clearer. I see a lot of people saying, "I could accept Rec 11 if [this or that small change was made]. How does the polling account for that? If this is a binary vote, ONLY yes or no, I am pretty sure you won't get consensus on Rec 11.
--MM
-----Original Message----- You only list 2 designations: Full Consensus and Consensus. I am assuming it is possible that you could get Less than Consensus (don't expect it or wish for it, but it is possible). Should that be listed as a possibility as well?
avri
On 30-Jan-16 15:47, Mathieu Weill wrote:
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@icann.org <javascript:;> <mailto:
acct-staff@icann.org <javascript:;>>.
* *
*
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <javascript:;> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Co-chairs wrote: "...Accordingly, determination of consensus will be based on the level of objection, not support..." SO: While I expect that all members would be present. Just incase this does not happen, I hope the text above is also imply that members who do not object nor have an opinion on the topic does not have to be present. Regards On 30 Jan 2016 9:48 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:
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@icann.org.
* *
*
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I assume that members not being able to participate in the call can poll on the list. el -- Sent from Dr Lisse's iPad mini 4
On 30 Jan 2016, at 22:47, Mathieu Weill <mathieu.weill@afnic.fr> wrote:
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@icann.org.
* *
*
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Co-Chairs, though I shall do my best to make the call, Dear Co-Chairs, as I have a hard stop at 07:00 UTC I request that the Poll be scheduled as the first order of business. Should I be unable to make the call or the Poll, I herewith appoint Stephen Deerhake, participant and ccTLD Manager, .AS) as my alternate to be polled should I not make it the call or the poll. Dear Accountability Staff, Please confirm receipt hereof by return email to Stephen and myself (or to the list) and that all is in order at your very earliest convenience. el -- Sent from Dr Lisse's iPad mini 4
On 30 Jan 2016, at 22:47, Mathieu Weill <mathieu.weill@afnic.fr> wrote:
[...]
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@icann.org.
[...]
Dear Co-Chairs Pls kindly confirm that you have received my last alternative proposal concerning another threshold between Simple Majority and 2/3. This alternative threshould is *60%* *There has been many cases considered with that level of threshold* *Pls confirm its recption and confirm actions to be taken before you go to poll* *Awaiting for your reply* *Kavouss * 2016-01-31 9:29 GMT+01:00 Dr Eberhard W Lisse <epilisse@gmail.com>:
Dear Co-Chairs,
though I shall do my best to make the call, Dear Co-Chairs, as I have a hard stop at 07:00 UTC I request that the Poll be scheduled as the first order of business.
Should I be unable to make the call or the Poll, I herewith appoint Stephen Deerhake, participant and ccTLD Manager, .AS) as my alternate to be polled should I not make it the call or the poll.
Dear Accountability Staff,
Please confirm receipt hereof by return email to Stephen and myself (or to the list) and that all is in order at your very earliest convenience.
el
-- Sent from Dr Lisse's iPad mini 4
On 30 Jan 2016, at 22:47, Mathieu Weill <mathieu.weill@afnic.fr> wrote:
[...]
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@icann.org.
[...]
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Confirmed. B. On Sun, Jan 31, 2016 at 3:29 AM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
Dear Co-Chairs,
though I shall do my best to make the call, Dear Co-Chairs, as I have a hard stop at 07:00 UTC I request that the Poll be scheduled as the first order of business.
Should I be unable to make the call or the Poll, I herewith appoint Stephen Deerhake, participant and ccTLD Manager, .AS) as my alternate to be polled should I not make it the call or the poll.
Dear Accountability Staff,
Please confirm receipt hereof by return email to Stephen and myself (or to the list) and that all is in order at your very earliest convenience.
el
-- Sent from Dr Lisse's iPad mini 4
On 30 Jan 2016, at 22:47, Mathieu Weill <mathieu.weill@afnic.fr> wrote:
[...]
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@icann.org.
[...]
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Co-Chairs, I have to say that I do not agree entirely with your reading of the charter reflected in the following statement: 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. Specifically, the above appears to be correct for determining Full Consensus (distinguished by "an absence of objection"). However, the above appears to be incorrect for determining Consensus, which requires that "most agree," in addition to requiring that only "a small minority disagrees." In other words, a finding of "Consensus" requires both a minimum level of *support* ("most agree") and a maximum level of *objection* (only "a small minority disagrees"). On this basis, if there are any objections, the responses of "most" members must indicate agreement, rather than a mere lack of objection, to support a finding of Consensus. Abstentions, no-shows, and "neither support nor object" responses would not count toward Consensus. I am hopeful that we could still make progress toward consensus in the next 24 hours such that a "consensus call" is unnecessary. Nonetheless, if it comes to a poll, I hope that you will adjust your methodology accordingly. Finally, I will reiterate my suggestion that, if a poll is conducted, it also tests the level of support and objection for the "option packages" that have emerged since the Third Draft Report was published over two months ago. Best regards, Greg On Sat, Jan 30, 2016 at 3:47 PM, Mathieu Weill <mathieu.weill@afnic.fr> wrote:
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@icann.org.
* *
*
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree with Greg on process here, lets not undermine the carefully contacted balances of consensus in the aim of getting a quick result here. -jg From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Monday 1 February 2016 at 5:56 a.m. To: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Cc: CCWG Accountability <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Notice of polling of members on Recommendation 11 at the next meeting of the CCWG February 2nd 06:00UTC Dear Co-Chairs, I have to say that I do not agree entirely with your reading of the charter reflected in the following statement: 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. Specifically, the above appears to be correct for determining Full Consensus (distinguished by "an absence of objection"). However, the above appears to be incorrect for determining Consensus, which requires that "most agree," in addition to requiring that only "a small minority disagrees." In other words, a finding of "Consensus" requires both a minimum level of support ("most agree") and a maximum level of objection (only "a small minority disagrees"). On this basis, if there are any objections, the responses of "most" members must indicate agreement, rather than a mere lack of objection, to support a finding of Consensus. Abstentions, no-shows, and "neither support nor object" responses would not count toward Consensus. I am hopeful that we could still make progress toward consensus in the next 24 hours such that a "consensus call" is unnecessary. Nonetheless, if it comes to a poll, I hope that you will adjust your methodology accordingly. Finally, I will reiterate my suggestion that, if a poll is conducted, it also tests the level of support and objection for the "option packages" that have emerged since the Third Draft Report was published over two months ago. Best regards, Greg On Sat, Jan 30, 2016 at 3:47 PM, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> wrote: 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@icann.org<mailto:acct-staff@icann.org>. * * * 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
That would be change our working method to voting, wouldn't it? el -- Sent from Dr Lisse's iPhone 6s On 1 Feb 2016, 08:08 +0200, James Gannon<james@cyberinvasion.net>, wrote:
I agree with Greg on process here, lets not undermine the carefully contacted balances of consensus in the aim of getting a quick result here.
-jg
From:<accountability-cross-community-bounces@icann.org(mailto:accountability-cross-community-bounces@icann.org)>on behalf of Greg Shatan<gregshatanipc@gmail.com(mailto:gregshatanipc@gmail.com)> Date:Monday 1 February 2016 at 5:56 a.m. To:Mathieu Weill<mathieu.weill@afnic.fr(mailto:mathieu.weill@afnic.fr)> Cc:CCWG Accountability<accountability-cross-community@icann.org(mailto:accountability-cross-community@icann.org)> Subject:Re: [CCWG-ACCT] Notice of polling of members on Recommendation 11 at the next meeting of the CCWG February 2nd 06:00UTC
Dear Co-Chairs,
I have to say that I do not agree entirely with your reading of the charter reflected in the following statement:
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.
Specifically, the above appears to be correct for determining Full Consensus (distinguished by "an absence of objection").However, the above appears to be incorrect for determining Consensus, which requires that "most agree," in addition to requiring that only "a small minority disagrees."In other words, a finding of "Consensus" requires both a minimum level ofsupport("most agree") and a maximum level ofobjection(only "a small minority disagrees").
On this basis, if there are any objections, the responses of"most" members must indicate agreement, rather than a mere lack of objection, to support a finding of Consensus.Abstentions, no-shows, and "neither support nor object" responses would not count toward Consensus.
I am hopeful that we could still make progress toward consensus in the next 24 hours such that a "consensus call" is unnecessary.Nonetheless, if it comes to a poll, I hope that you will adjust your methodology accordingly.
Finally, I will reiterate my suggestion that, if a poll is conducted, it also tests the level of support and objection for the "option packages" that have emerged since the Third Draft Report was published over two months ago.
Best regards,
Greg
On Sat, Jan 30, 2016 at 3:47 PM, Mathieu Weill<mathieu.weill@afnic.fr(mailto:mathieu.weill@afnic.fr)>wrote:
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 toacct-staff@icann.org(mailto:acct-staff@icann.org).
**
*
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:
1The 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.
2Notes:
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org(mailto:Accountability-Cross-Community@icann.org) https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
We are only "polling," not "voting." It seems, however, that the poll will have the same effect as a vote, to the extent the effect is discernible from the Chairs' email. On Monday, February 1, 2016, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
That would be change our working method to voting, wouldn't it?
el
-- Sent from Dr Lisse's iPhone 6s
On 1 Feb 2016, 08:08 +0200, James Gannon <james@cyberinvasion.net <javascript:_e(%7B%7D,'cvml','james@cyberinvasion.net');>>, wrote:
I agree with Greg on process here, lets not undermine the carefully contacted balances of consensus in the aim of getting a quick result here.
-jg
From: <accountability-cross-community-bounces@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces@icann.org');>> on behalf of Greg Shatan <gregshatanipc@gmail.com <javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> Date: Monday 1 February 2016 at 5:56 a.m. To: Mathieu Weill <mathieu.weill@afnic.fr <javascript:_e(%7B%7D,'cvml','mathieu.weill@afnic.fr');>> Cc: CCWG Accountability <accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');>
Subject: Re: [CCWG-ACCT] Notice of polling of members on Recommendation 11 at the next meeting of the CCWG February 2nd 06:00UTC
Dear Co-Chairs,
I have to say that I do not agree entirely with your reading of the charter reflected in the following statement:
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.
Specifically, the above appears to be correct for determining Full Consensus (distinguished by "an absence of objection"). However, the above appears to be incorrect for determining Consensus, which requires that "most agree," in addition to requiring that only "a small minority disagrees." In other words, a finding of "Consensus" requires both a minimum level of *support* ("most agree") and a maximum level of *objection* (only "a small minority disagrees").
On this basis, if there are any objections, the responses of "most" members must indicate agreement, rather than a mere lack of objection, to support a finding of Consensus. Abstentions, no-shows, and "neither support nor object" responses would not count toward Consensus.
I am hopeful that we could still make progress toward consensus in the next 24 hours such that a "consensus call" is unnecessary. Nonetheless, if it comes to a poll, I hope that you will adjust your methodology accordingly.
Finally, I will reiterate my suggestion that, if a poll is conducted, it also tests the level of support and objection for the "option packages" that have emerged since the Third Draft Report was published over two months ago.
Best regards,
Greg
On Sat, Jan 30, 2016 at 3:47 PM, Mathieu Weill <mathieu.weill@afnic.fr <javascript:_e(%7B%7D,'cvml','mathieu.weill@afnic.fr');>> wrote:
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@icann.org <javascript:_e(%7B%7D,'cvml','acct-staff@icann.org');>.
* *
*
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community
If we come up with multiple different proposals and put these to the vote/poll, we will exclude the Participants because only the Members are polling/voting. "In appointing their members, the chartering organizations should note that the CCWG-Accountability's decision-making methodologies require that CCWG-Accountability members act by consensus, and that polling will only be used in rare instances and with the recognition that such polls do not constitute votes." "In a rare case, the chair(s) may decide that the use of a poll is reasonable to assess the level of support for a recommendation. However, care should be taken in using polls that they do not become votes, as there are often disagreements about the meanings of the poll questions or of the poll results." I do not have a concern about polling about the current 2/3 proposal. I personally am comfortable with the 60% solution, if it gets a Public Comment. el On 2016-02-01 09:17, Greg Shatan wrote:
We are only "polling," not "voting."
It seems, however, that the poll will have the same effect as a vote, to the extent the effect is discernible from the Chairs' email.
On Monday, February 1, 2016, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
That would be change our working method to voting, wouldn't it?
el [...]
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
I have a linguistic problem with the meaning of the Charter. In my native variant of the English language, the construction appears to be 'such votes do not constitute votes'. Does poll really mean 'straw poll' ?? On 01/02/16 09:29, Dr Eberhard W Lisse wrote:
If we come up with multiple different proposals and put these to the vote/poll, we will exclude the Participants because only the Members are polling/voting.
"In appointing their members, the chartering organizations should note that the CCWG-Accountability's decision-making methodologies require that CCWG-Accountability members act by consensus, and that polling will only be used in rare instances and with the recognition that such polls do not constitute votes."
"In a rare case, the chair(s) may decide that the use of a poll is reasonable to assess the level of support for a recommendation. However, care should be taken in using polls that they do not become votes, as there are often disagreements about the meanings of the poll questions or of the poll results."
I do not have a concern about polling about the current 2/3 proposal.
I personally am comfortable with the 60% solution, if it gets a Public Comment.
el
On 2016-02-01 09:17, Greg Shatan wrote:
We are only "polling," not "voting."
It seems, however, that the poll will have the same effect as a vote, to the extent the effect is discernible from the Chairs' email.
On Monday, February 1, 2016, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
That would be change our working method to voting, wouldn't it?
el [...]
(for the avoidance of doubt, the word 'poll' and 'vote' are synonyms). On 01/02/16 09:33, Nigel Roberts wrote:
I have a linguistic problem with the meaning of the Charter.
In my native variant of the English language, the construction appears to be 'such votes do not constitute votes'.
Does poll really mean 'straw poll' ??
On 01/02/16 09:29, Dr Eberhard W Lisse wrote:
If we come up with multiple different proposals and put these to the vote/poll, we will exclude the Participants because only the Members are polling/voting.
"In appointing their members, the chartering organizations should note that the CCWG-Accountability's decision-making methodologies require that CCWG-Accountability members act by consensus, and that polling will only be used in rare instances and with the recognition that such polls do not constitute votes."
"In a rare case, the chair(s) may decide that the use of a poll is reasonable to assess the level of support for a recommendation. However, care should be taken in using polls that they do not become votes, as there are often disagreements about the meanings of the poll questions or of the poll results."
I do not have a concern about polling about the current 2/3 proposal.
I personally am comfortable with the 60% solution, if it gets a Public Comment.
el
On 2016-02-01 09:17, Greg Shatan wrote:
We are only "polling," not "voting."
It seems, however, that the poll will have the same effect as a vote, to the extent the effect is discernible from the Chairs' email.
On Monday, February 1, 2016, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
That would be change our working method to voting, wouldn't it?
el [...]
Nigel, you are missing the point. The Charter wants us to work consensus-based and not by debating proposals, voting on them and take the one succeeding in the vote. Not unlike the GAC methodology debate we had, by the way... The current issue is a good example, the GNSO reps seem to be objecting to the current (2/3) proposal (for different reasons, perhaps) as do I. It would be good to establish whether more than a "small minority" disagrees, because if so, the proposal dies for lack of Consensus. el On 2016-02-01 11:34, Nigel Roberts wrote:
(for the avoidance of doubt, the word 'poll' and 'vote' are synonyms).
On 01/02/16 09:33, Nigel Roberts wrote:
I have a linguistic problem with the meaning of the Charter.
In my native variant of the English language, the construction appears to be 'such votes do not constitute votes'.
Does poll really mean 'straw poll' ??
On 01/02/16 09:29, Dr Eberhard W Lisse wrote:
If we come up with multiple different proposals and put these to the vote/poll, we will exclude the Participants because only the Members are polling/voting.
"In appointing their members, the chartering organizations should note that the CCWG-Accountability's decision-making methodologies require that CCWG-Accountability members act by consensus, and that polling will only be used in rare instances and with the recognition that such polls do not constitute votes."
"In a rare case, the chair(s) may decide that the use of a poll is reasonable to assess the level of support for a recommendation. However, care should be taken in using polls that they do not become votes, as there are often disagreements about the meanings of the poll questions or of the poll results."
I do not have a concern about polling about the current 2/3 proposal.
I personally am comfortable with the 60% solution, if it gets a Public Comment.
el [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
On 01/02/2016 09:58, Dr Eberhard W Lisse wrote:
It would be good to establish whether more than a "small minority" disagrees, because if so, the proposal dies for lack of Consensus.
Well, is the GNSO considered a "small minority" of this CCWG? -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Dear All, The comments received from GBSO should carefully read ad there is no unanimity in their opposition of Rec 11 Kavouss Sent from my iPhone
On 1 Feb 2016, at 11:43, Malcolm Hutty <malcolm@linx.net> wrote:
On 01/02/2016 09:58, Dr Eberhard W Lisse wrote: It would be good to establish whether more than a "small minority" disagrees, because if so, the proposal dies for lack of Consensus.
Well, is the GNSO considered a "small minority" of this CCWG?
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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Dear Co-Chairs I fully support your wise designation approach. Pls proceed as described. Many others would support you. Be courageous and do whatever you have carefully crafted. Regards Kavousd Sent from my iPhone
On 1 Feb 2016, at 06:56, Greg Shatan <gregshatanipc@gmail.com> wrote:
Dear Co-Chairs,
I have to say that I do not agree entirely with your reading of the charter reflected in the following statement:
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.
Specifically, the above appears to be correct for determining Full Consensus (distinguished by "an absence of objection"). However, the above appears to be incorrect for determining Consensus, which requires that "most agree," in addition to requiring that only "a small minority disagrees." In other words, a finding of "Consensus" requires both a minimum level of support ("most agree") and a maximum level of objection (only "a small minority disagrees").
On this basis, if there are any objections, the responses of "most" members must indicate agreement, rather than a mere lack of objection, to support a finding of Consensus. Abstentions, no-shows, and "neither support nor object" responses would not count toward Consensus.
I am hopeful that we could still make progress toward consensus in the next 24 hours such that a "consensus call" is unnecessary. Nonetheless, if it comes to a poll, I hope that you will adjust your methodology accordingly.
Finally, I will reiterate my suggestion that, if a poll is conducted, it also tests the level of support and objection for the "option packages" that have emerged since the Third Draft Report was published over two months ago.
Best regards,
Greg
On Sat, Jan 30, 2016 at 3:47 PM, Mathieu Weill <mathieu.weill@afnic.fr> wrote: 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@icann.org.
* *
*
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear Co-chairs, all I have a hard stop at 06.35 UTC tomorrow, so if it is decided to carry on with the poll of Members regarding Rec 11 at the call tomorrow and should I have to leave the call before the polling starts, I hereby appoint Finn Petersen (participant, GAC DK) as my alternate. I will do my best to follow the rest of the call via phone bridge but the connection on the train is very poor. Best regards, Julia Julia Katja Wolman DANISH BUSINESS AUTHORITY Dahlerups Pakhus Langelinie Allé 17 DK-2100 København Ø Telephone: +45 3529 1000 Direct: +45 35291308 E-mail: jukacz@erst.dk www.erhvervsstyrelsen.dk MINISTRY FOR BUSINESS AND GROWTH P Please consider the environment before printing this email. Fra: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] På vegne af Mathieu Weill Sendt: 30. januar 2016 21:48 Til: 'CCWG Accountability' Emne: [CCWG-ACCT] Notice of polling of members on Recommendation 11 at the next meeting of the CCWG February 2nd 06:00UTC 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@icann.org<mailto:acct-staff@icann.org>. * * * 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
participants (14)
-
Avri Doria -
Bernard Turcotte -
Dr Eberhard W Lisse -
Dr Eberhard W Lisse -
Greg Shatan -
James Gannon -
Julia Katja Wolman -
Kavouss Arasteh -
Malcolm Hutty -
Mathieu Weill -
Mueller, Milton L -
Nigel Roberts -
Schaefer, Brett -
Seun Ojedeji