----- Original Message -----

From: Alan Greenberg

To: Kan Kaili ; alac

Sent: Tuesday, November 10, 2015 10:42 PM

Subject: Re: [ALAC] Fwd: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Thanks Kaili,

I would suggest that details at that level do not belong in the Bylaws. If the ALAC chooses to follow this path, it is part of our own processes. However, I would caution that this is a decision that should be made on a case by case basis. The ALAC gives formal advice to the Board relatively infrequesntly. In most cases, such decisions are unanimous. If it was not, it would likely be a very small minority that would oppose (again, using past history). The ALAC would need to carefully decide if it wanted to offset its "advice" with an opposing view. I'm not saying it is not appropriate, just that if we do it, it should be a conscious decision.

On 2/3, in most cases, a vote requiring 2/3 (referred to as a supermajority) is 2/3 of those directors present at the time (and subject to a quorum being there). In some cases, such as approval of Bylaw changes, what is required is the affirmative 2/3 vote of all directors.

Alan


At 10/11/2015 03:22 AM, Kan Kaili wrote:

Hi, Alan,
 
Thank you for collecting comments from our ALAC members.
 
Regarding the statement "The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus" and "each Advisory Committee has the right to determine its particular definition of consensus", considering:

-- the final decision's responsibility and power rests at the Board;
 
-- ACs are to provide "advices" instead of instructions nor guidance to the Board;
 
-- under various definitions of "consensus", the ACs's advices may not be unanimous, implying there may be opinions against such advices which may provide value and may represent opionions of  substantial stakeholders, as well as may provide insight to the Board in the future;
 
-- in order to provide richer advices to the Board for consideration and decision making,
 
I suggest to make the follwing modification:
 
"... each Advisory Committee has the right to determine its particular definition of consensus.  In the case an advice is not made unanimously by the Advisory Committee, opinions against the advice have the right to state such opinions attached to the advice."
 
Another comment is more of a question and more technical, which maybe because I am new:
 
The Board has 16 voting members, which means "a vote of more than two-thirds (2/3) of the Board" is normally 11 votes or more.  However, after reading thru the Bylaws, I did not find how this 2/3 is calculated.  That is, the counting of votes are those physically present at a meeting at the time of voting, or can be casted remotely or by proxy?  Also, in case one or more Board members casted an "absentee" vote, the 2/3 majority is calculated according to the total members who casted their votes, or is according to only those who casted a for/against vote, thus discounting absentee votes?  (There are more cases which may further complicate the outcome of calculation.)
 
Such technical details may well have been addressed somewhere already.  In such a likely case, please kindly discard my above question/comment.  However, my thoughts are, at such a critical time of ICANN's future, we cannot afford to overlook these details.
 
Thank you.
 
Best regards,
Kaili
 
 

----- Original Message -----

From: Alan Greenberg

To: alac

Sent: Tuesday, November 10, 2015 2:07 AM

Subject: [ALAC] Fwd: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

This is a new proposal by Brazil to replace the current Bylaw change to address Stress Test 18. It re-instates the requirement that the Board reject GAC advice by a supermajority, one of the ATRT outcomes that was proposed several months ago. At that time, there was significant push back that increasing the rejection threshhold increased the power of the Board.  Although possible technically correct, in my mind, it would not make a difference, because rejection of GAC advice, in the relatively rare times it has happened, has been nearly or completely unanimous.

This is now accompanied by a much stronger requirement to consider the advice of all ACs including the ALAC.

This may well be a way to bypass the GAC's rejection of the ST18 outcomes and at first glance, I would support it.

Comments?

Alan

To: "accountability-cross-community@icann.org"

         <accountability-cross-community@icann.org>

Date: Mon, 9 Nov 2015 14:28:46 +0000

Subject: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear CCWG colleagues,

As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:

"The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered:

The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee;

The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus;

The value the Board attributes to receiving consensus advice;

The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.

In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability."

With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws.

ARTICLE XI: ADVISORY COMMITTEES

Section 1. GENERAL

“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board.

Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.”

 

ARTICLE XI: ADVISORY COMMITTEES

Section 2. SPECIFIC ADVISORY COMMITTEES

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 GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. 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.”

Kind regards,

Pedro Ivo Ferraz da Silva

Divisão da Sociedade da Informação

Ministério das Relações Exteriores

T: +55 61 2030-6609

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