Re: [CCWG-ACCT] ST18 breathrough text
Agree, Matheiu. You’ve got it all in one sentence so there’s no disconnect or confusion. So the full text of Article XI, Section 2, Item 1 would be: 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 GAC advice approved by a full GAC 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 two-thirds (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. 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Thursday, November 26, 2015 at 11:56 AM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] ST18 breathrough text Thank you Phil, I think you are right that removing that ambiguity is consistent with our discussion earlier today. Probably the easiest fix would be to merge sentences as such “Any GAC advice approved by a full GAC 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 two-thirds (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.” Best Mathieu De : Phil Corwin [mailto:psc@vlaw-dc.com] Envoyé : jeudi 26 novembre 2015 18:43 À : Mathieu Weill; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Objet : RE: ST18 breathrough text With all respect, I believe there was substantial consensus and no objection on the call to accepting my suggestion that the last sentence of the first paragraph be clarified to eliminate any ambiguity as to which GAC advice would require an effort to find a mutually acceptable solution, as follows: With respect to such consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Absent such clarification, this sentence could be read as imposing that duty in regard to any GAC advice transmitted to the Board, regardless of whether it was supported by consensus. Even with this clarification, the Board would still have to duly take into account any GAC advice, as per the first sentence. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mathieu Weill Sent: Thursday, November 26, 2015 11:09 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] TR: ST18 breathrough text Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here’s what we need in the 3rd report: Article XI, Section 2, Item 1 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 GAC advice approved by a full GAC 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 two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. 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.
The second paragraph is for explanatory purposes only, correct? It will be in the report, but not the bylaws? ________________________________ 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 Nov 26, 2015, at 12:05 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: Agree, Matheiu. You’ve got it all in one sentence so there’s no disconnect or confusion. So the full text of Article XI, Section 2, Item 1 would be: 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 GAC advice approved by a full GAC 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 two-thirds (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. 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Thursday, November 26, 2015 at 11:56 AM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] ST18 breathrough text Thank you Phil, I think you are right that removing that ambiguity is consistent with our discussion earlier today. Probably the easiest fix would be to merge sentences as such “Any GAC advice approved by a full GAC 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 two-thirds (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.” Best Mathieu De : Phil Corwin [mailto:psc@vlaw-dc.com] Envoyé : jeudi 26 novembre 2015 18:43 À : Mathieu Weill; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Objet : RE: ST18 breathrough text With all respect, I believe there was substantial consensus and no objection on the call to accepting my suggestion that the last sentence of the first paragraph be clarified to eliminate any ambiguity as to which GAC advice would require an effort to find a mutually acceptable solution, as follows: With respect to such consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Absent such clarification, this sentence could be read as imposing that duty in regard to any GAC advice transmitted to the Board, regardless of whether it was supported by consensus. Even with this clarification, the Board would still have to duly take into account any GAC advice, as per the first sentence. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mathieu Weill Sent: Thursday, November 26, 2015 11:09 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] TR: ST18 breathrough text Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here’s what we need in the 3rd report: Article XI, Section 2, Item 1 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 GAC advice approved by a full GAC 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 two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. 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. _______________________________________________ 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
I think that language does it. Is the intent that both paragraphs will be in the Bylaws, or only the first with the second being an explanation accompanying it in the report? Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Thursday, November 26, 2015 1:04 PM To: Mathieu Weill; Phil Corwin; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] ST18 breathrough text Agree, Matheiu. You’ve got it all in one sentence so there’s no disconnect or confusion. So the full text of Article XI, Section 2, Item 1 would be: 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 GAC advice approved by a full GAC 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 two-thirds (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. 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Thursday, November 26, 2015 at 11:56 AM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] ST18 breathrough text Thank you Phil, I think you are right that removing that ambiguity is consistent with our discussion earlier today. Probably the easiest fix would be to merge sentences as such “Any GAC advice approved by a full GAC 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 two-thirds (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.” Best Mathieu De : Phil Corwin [mailto:psc@vlaw-dc.com] Envoyé : jeudi 26 novembre 2015 18:43 À : Mathieu Weill; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Objet : RE: ST18 breathrough text With all respect, I believe there was substantial consensus and no objection on the call to accepting my suggestion that the last sentence of the first paragraph be clarified to eliminate any ambiguity as to which GAC advice would require an effort to find a mutually acceptable solution, as follows: With respect to such consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Absent such clarification, this sentence could be read as imposing that duty in regard to any GAC advice transmitted to the Board, regardless of whether it was supported by consensus. Even with this clarification, the Board would still have to duly take into account any GAC advice, as per the first sentence. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mathieu Weill Sent: Thursday, November 26, 2015 11:09 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] TR: ST18 breathrough text Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here’s what we need in the 3rd report: Article XI, Section 2, Item 1 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 GAC advice approved by a full GAC 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 two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. 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.
Intent here is that both paragraphs go in the bylaws. From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Thursday, November 26, 2015 at 2:11 PM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] ST18 breathrough text I think that language does it. Is the intent that both paragraphs will be in the Bylaws, or only the first with the second being an explanation accompanying it in the report? From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Thursday, November 26, 2015 1:04 PM To: Mathieu Weill; Phil Corwin; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ST18 breathrough text Agree, Matheiu. You’ve got it all in one sentence so there’s no disconnect or confusion. So the full text of Article XI, Section 2, Item 1 would be: 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 GAC advice approved by a full GAC 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 two-thirds (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. 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Thursday, November 26, 2015 at 11:56 AM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] ST18 breathrough text Thank you Phil, I think you are right that removing that ambiguity is consistent with our discussion earlier today. Probably the easiest fix would be to merge sentences as such “Any GAC advice approved by a full GAC 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 two-thirds (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.” Best Mathieu De : Phil Corwin [mailto:psc@vlaw-dc.com] Envoyé : jeudi 26 novembre 2015 18:43 À : Mathieu Weill; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Objet : RE: ST18 breathrough text With all respect, I believe there was substantial consensus and no objection on the call to accepting my suggestion that the last sentence of the first paragraph be clarified to eliminate any ambiguity as to which GAC advice would require an effort to find a mutually acceptable solution, as follows: With respect to such consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Absent such clarification, this sentence could be read as imposing that duty in regard to any GAC advice transmitted to the Board, regardless of whether it was supported by consensus. Even with this clarification, the Board would still have to duly take into account any GAC advice, as per the first sentence. From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mathieu Weill Sent: Thursday, November 26, 2015 11:09 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] TR: ST18 breathrough text Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here’s what we need in the 3rd report: Article XI, Section 2, Item 1 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 GAC advice approved by a full GAC 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 two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. 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.
In that case I trust our fine counsel can reword things so the example itself is not placed in the Bylaws. Give me something like that in litigation and I could twist and turn it into an unrecognisable form with unintended consequences by affirming a disjunct of the example or by other means. Let's stick with statutory type language in the Bylaws, while certainly recognising the principle involved in paragraph 2 both in the Bylaws and in any accompanying explanatory documentation where examples are more appropriate. Thanks, Ed ---------------------------------------- From: "Steve DelBianco" <sdelbianco@netchoice.org> Sent: Thursday, November 26, 2015 8:39 PM To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ST18 breathrough text Intent here is that both paragraphs go in the bylaws. From: Phil Corwin <psc@vlaw-dc.com> Date: Thursday, November 26, 2015 at 2:11 PM To: Steve DelBianco <sdelbianco@netchoice.org>, Mathieu Weill <mathieu.weill@afnic.fr>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] ST18 breathrough text I think that language does it. Is the intent that both paragraphs will be in the Bylaws, or only the first with the second being an explanation accompanying it in the report? From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Thursday, November 26, 2015 1:04 PM To: Mathieu Weill; Phil Corwin; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] ST18 breathrough text Agree, Matheiu. You've got it all in one sentence so there's no disconnect or confusion. So the full text of Article XI, Section 2, Item 1 would be: 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 GAC advice approved by a full GAC 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 two-thirds (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. 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. From: <accountability-cross-community-bounces@icann.org> on behalf of Mathieu Weill <mathieu.weill@afnic.fr> Date: Thursday, November 26, 2015 at 11:56 AM To: Phil Corwin <psc@vlaw-dc.com>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ST18 breathrough text Thank you Phil, I think you are right that removing that ambiguity is consistent with our discussion earlier today. Probably the easiest fix would be to merge sentences as such "Any GAC advice approved by a full GAC 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 two-thirds (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." Best Mathieu De : Phil Corwin [mailto:psc@vlaw-dc.com] Envoyé : jeudi 26 novembre 2015 18:43 À : Mathieu Weill; accountability-cross-community@icann.org Objet : RE: ST18 breathrough text With all respect, I believe there was substantial consensus and no objection on the call to accepting my suggestion that the last sentence of the first paragraph be clarified to eliminate any ambiguity as to which GAC advice would require an effort to find a mutually acceptable solution, as follows: With respect to such consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Absent such clarification, this sentence could be read as imposing that duty in regard to any GAC advice transmitted to the Board, regardless of whether it was supported by consensus. Even with this clarification, the Board would still have to duly take into account any GAC advice, as per the first sentence. From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mathieu Weill Sent: Thursday, November 26, 2015 11:09 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] TR: ST18 breathrough text Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here's what we need in the 3rd report: Article XI, Section 2, Item 1 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 GAC advice approved by a full GAC 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 two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. 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.
Now I've NEVER heard of 'disjunct of the example' heretofore. But I like the sound of it. Can you please educate me on this, probably off-list, or over a beer or mint tea in Marrakesh? Thanks for that (and for the genuine opportunity to use 'heretofore' in the real world). On 26/11/15 20:57, Edward Morris wrote:
In that case I trust our fine counsel can reword things so the example itself is not placed in the Bylaws. Give me something like that in litigation and I could twist and turn it into an unrecognisable form with unintended consequences by affirming a disjunct of the example or
Once thing I have learned a while back is not to let amateurs do legal drafting. That applies to Bylaws writing. And to us. el -- Sent from Dr Lisse's iPad mini
On 26 Nov 2015, at 23:09, Nigel Roberts <nigel@channelisles.net> wrote:
Now I've NEVER heard of 'disjunct of the example' heretofore. But I like the sound of it.
Can you please educate me on this, probably off-list, or over a beer or mint tea in Marrakesh?
Thanks for that (and for the genuine opportunity to use 'heretofore' in the real world).
On 26/11/15 20:57, Edward Morris wrote:
In that case I trust our fine counsel can reword things so the example itself is not placed in the Bylaws. Give me something like that in litigation and I could twist and turn it into an unrecognisable form with unintended consequences by affirming a disjunct of the example or
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Yes, let's have Counsel consider that. I'm OK with the second sentence of the second paragraph. In fact, it would fit most logically as the final sentence of the first. But the first sentence just doesn't fit comfortably, IMHO. Further, even as it states that the GAC has autonomy in its Operating Principles, its very presence in the Bylaws suggests that a future amendment could direct the GAC in regard to its OP. If the Bylaws are thought of as provisions of ICANN's revised Constitution, and if the third and hopefully final Proposal is viewed as akin to its Federalist Papers - that is, a document that can be referred to in the future to discern the intent of and understanding underlying a Bylaws revision or addition - the same purpose can be achieved without introducing an extraneous sentence. Those are my thoughts, and I defer further to Counsel. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Edward Morris Sent: Thursday, November 26, 2015 3:57 PM To: Steve DelBianco; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] ST18 breathrough text In that case I trust our fine counsel can reword things so the example itself is not placed in the Bylaws. Give me something like that in litigation and I could twist and turn it into an unrecognisable form with unintended consequences by affirming a disjunct of the example or by other means. Let's stick with statutory type language in the Bylaws, while certainly recognising the principle involved in paragraph 2 both in the Bylaws and in any accompanying explanatory documentation where examples are more appropriate. Thanks, Ed ________________________________ From: "Steve DelBianco" <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Sent: Thursday, November 26, 2015 8:39 PM To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] ST18 breathrough text Intent here is that both paragraphs go in the bylaws. From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Thursday, November 26, 2015 at 2:11 PM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] ST18 breathrough text I think that language does it. Is the intent that both paragraphs will be in the Bylaws, or only the first with the second being an explanation accompanying it in the report? From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Thursday, November 26, 2015 1:04 PM To: Mathieu Weill; Phil Corwin; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ST18 breathrough text Agree, Matheiu. You've got it all in one sentence so there's no disconnect or confusion. So the full text of Article XI, Section 2, Item 1 would be: 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 GAC advice approved by a full GAC 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 two-thirds (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. 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Thursday, November 26, 2015 at 11:56 AM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] ST18 breathrough text Thank you Phil, I think you are right that removing that ambiguity is consistent with our discussion earlier today. Probably the easiest fix would be to merge sentences as such "Any GAC advice approved by a full GAC 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 two-thirds (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." Best Mathieu De : Phil Corwin [mailto:psc@vlaw-dc.com] Envoyé : jeudi 26 novembre 2015 18:43 À : Mathieu Weill; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Objet : RE: ST18 breathrough text With all respect, I believe there was substantial consensus and no objection on the call to accepting my suggestion that the last sentence of the first paragraph be clarified to eliminate any ambiguity as to which GAC advice would require an effort to find a mutually acceptable solution, as follows: With respect to such consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Absent such clarification, this sentence could be read as imposing that duty in regard to any GAC advice transmitted to the Board, regardless of whether it was supported by consensus. Even with this clarification, the Board would still have to duly take into account any GAC advice, as per the first sentence. From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mathieu Weill Sent: Thursday, November 26, 2015 11:09 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] TR: ST18 breathrough text Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here's what we need in the 3rd report: Article XI, Section 2, Item 1 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 GAC advice approved by a full GAC 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 two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. 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.
To me there is still an open question and an ambiguity. Currently consensus means no formal objection at all. Well the Ganic is the opportunity to change its operating procedures, if they change the definition of objection then would that would require a bylaws change? Milton L Mueller Professor, School of Public Policy Georgia Institute of Technology On Nov 26, 2015, at 15:37, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: Intent here is that both paragraphs go in the bylaws. From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Thursday, November 26, 2015 at 2:11 PM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] ST18 breathrough text I think that language does it. Is the intent that both paragraphs will be in the Bylaws, or only the first with the second being an explanation accompanying it in the report? From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Thursday, November 26, 2015 1:04 PM To: Mathieu Weill; Phil Corwin; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] ST18 breathrough text Agree, Matheiu. You’ve got it all in one sentence so there’s no disconnect or confusion. So the full text of Article XI, Section 2, Item 1 would be: 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 GAC advice approved by a full GAC 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 two-thirds (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. 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. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Thursday, November 26, 2015 at 11:56 AM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] ST18 breathrough text Thank you Phil, I think you are right that removing that ambiguity is consistent with our discussion earlier today. Probably the easiest fix would be to merge sentences as such “Any GAC advice approved by a full GAC 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 two-thirds (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.” Best Mathieu De : Phil Corwin [mailto:psc@vlaw-dc.com] Envoyé : jeudi 26 novembre 2015 18:43 À : Mathieu Weill; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Objet : RE: ST18 breathrough text With all respect, I believe there was substantial consensus and no objection on the call to accepting my suggestion that the last sentence of the first paragraph be clarified to eliminate any ambiguity as to which GAC advice would require an effort to find a mutually acceptable solution, as follows: With respect to such consensus advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. Absent such clarification, this sentence could be read as imposing that duty in regard to any GAC advice transmitted to the Board, regardless of whether it was supported by consensus. Even with this clarification, the Board would still have to duly take into account any GAC advice, as per the first sentence. From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mathieu Weill Sent: Thursday, November 26, 2015 11:09 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] TR: ST18 breathrough text Dear Colleagues, During the call today, we found a common way forward on the ST18 recommendation, based on joint inputs from Denmark and Keith Drazek. This is intended to clarify the actual text that will be presented as our proposal on the Draft Report. Thank you all of you for your contributions to this significant step forward. Best and happy thanksgiving to all our US friends, Mathieu De : Steve DelBianco [mailto:sdelbianco@netchoice.org] Envoyé : jeudi 26 novembre 2015 17:03 À : ACCT-Staff; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía; Cheryl Langdon-Orr; Becky Burr; Jordan Carter Objet : ST18 breathrough text Here’s what we need in the 3rd report: Article XI, Section 2, Item 1 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 GAC advice approved by a full GAC 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 two-thirds (2/3) of the Board. With respect to such advice, the Governmental Advisory Committee and the ICANN Board will try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. 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. _______________________________________________ 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
participants (7)
-
Dr Eberhard W Lisse -
Edward Morris -
Mueller, Milton L -
Nigel Roberts -
Phil Corwin -
Schaefer, Brett -
Steve DelBianco