New subject: New task

Jan. 15, 2013

All:

I guess I am worried about the old maxim:  "Bad facts make bad law."  In its 10 plus years existence, the GNSO has only faced this issue once.  It seems to me that this should be left to the Chair's discretion, similar to the granting of deferrals.  This is in line with our "light touch" approach and gives the GNSO some flexibility.

J. Scott

j. scott evans -  head of global brand, domains & copyright - Yahoo! Inc. - 408.349.1385 - jscottevans@yahoo.com

________________________________
 From: Ron Andruff <randruff@rnapartners.com>
To: gnso-improvem-impl-sc@icann.org 
Sent: Tuesday, January 15, 2013 2:16 PM
Subject: RE: [gnso-improvem-impl-sc] New task

Dear all,

As I follow the debate it is becoming more
apparent to me that both sides appear to be right.  Both arguments have merit. 
On the one hand, consensus development is the goal of ICANN and so arriving at
consensus should always be the guiding principle.  On the other, there are
numerous examples of when votes are cast that decision is final - and therefore
no chance of a ‘do over’.  As we, ourselves, need to find full consensus
on the issues that come before the SCI to fulfill our mandate, I would like to change
the course of the discussion from what appears to be a deepening divide to a
discussion that could provide a ‘win’ for both sides of the current
debate.  

What is going through my mind is the
following question: Rather than argue whether a motion can be voted on twice,
or re-voted, as it were, would it be possible/make sense to bring a
reformulated motion back for vote at the following GNSO Council meeting?  A ‘reformulated
motion’ is one that achieves the same result, but it is not the same motion.
 This concept may or may not make sense, but the goal of my suggestion is to
see how we can come together to achieve what both sides of the current debate
are looking for – consensus without a ‘slippery slope’
solution.  Again, in order to fulfill our task, we must find full consensus
within the SCI and the direction we are going with the discussion on the list appears
to be taking us away from that goal.

What are your thoughts on this concept?

Kind regards,

RA

Ronald N. Andruff
RNA
Partners, Inc.

________________________________

From:owner-gnso-improvem-impl-sc@icann.org
[mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Alain Berranger
Sent: Tuesday, January 15, 2013
1:26 PM
To: Jen Wolfe
Cc: Neuman, Jeff;
Mary.Wong@law.unh.edu; avri@acm.org; gnso-improvem-impl-sc@icann.org
Subject: Re:
[gnso-improvem-impl-sc] New task

Thanks Jennifer,

Common sense speaks again! The black belt argument will often close a
discussion, though!!!! ;-) Many involved with ICANN would likely benefit from
six sigma training... including myself!

Let's see what the Standing Committee on GNSO Improvements
Implementation I discussions will lead too.

Cheers, Alain

On Fri, Jan 11, 2013 at 9:37 AM, Jen Wolfe <jwolfe@wolfedomain.com>
wrote:
Hi
everyone,

I hope your new year is  off to a great
start.  I know I am new to the council and this committee so forgive me if
I am misunderstanding our role, but what confused me about this particular
issue was that all of the councilors had the opportunity for discussion, to ask
questions and for consensus.  A vote was taken and then a councilor asked
further clarifying questions and then wanted to change his vote.  From a
strictly process standpoint, I am not clear on why a new vote should be allowed
once the time for discussion and clarifying questions close.  In any other
parliamentary procedure, legislative body or corporate governance on boards,
once a vote is taken, that’s it, even if someone misunderstood something
procedurally or substantively. 

I fully understand the need for consensus, but once
discussion closes and a vote is taken, from a process and procedural
standpoint, it’s a slippery slope to start allowing votes to be re-opened
because one person asked a clarifying question after the vote was taken. 
It not only takes up valuable time of the council in discussing new issues, but
could be used inappropriately in the future if this were permissible.  

I look forward to participating in this committee. 
I have a black belt in six sigma process improvement and pride myself on
finding ways to function more efficiently and hope I can provide meaningful
contributions to this committee.  

Have a great weekend!

jennifer c. WOLFE, esq., apr, SSBB
managing
director, wolfe domain, a digital brand strategy adivsory firm
managing
partner, wolfe, sadler, breen, morasch & colby, an intellectual property
law firm
IAM 300 - TOp 300 global ip strategists
2011 & 2012
Follow Me:   
Blog: What will you do
when your CEO asks why you didn’t apply for a gTLD?
Book: Domain Names Rewired

From:owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Neuman, Jeff
Sent: Thursday, January 10, 2013
3:05 PM
To: Alain Berranger; Mary.Wong@law.unh.edu
Cc: avri@acm.org; gnso-improvem-impl-sc@icann.org

Subject: RE:
[gnso-improvem-impl-sc] New task

All,

I am still missing the rationale as to why the NCSG
representatives believe this rule should be in place for a bottom-up consensus
driven organization.  

Please help me understand.

Jeffrey J. Neuman
Neustar,
Inc. / Vice President, Business Affairs

From:Alain Berranger [mailto:alain.berranger@gmail.com] 
Sent: Thursday, January 10, 2013
3:01 PM
To: Mary.Wong@law.unh.edu
Cc: avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com;
Neuman, Jeff
Subject: Re:
[gnso-improvem-impl-sc] New task

I agree fully with
Mary's arguments.

Best, Alain
On Wed, Jan 9,
2013 at 12:16 PM, <Mary.Wong@law.unh.edu>
wrote:
Thanks,
Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is
that a motion that is properly introduced, seconded and voted on should NOT be
re-introduced (whether in its original form or tweaked) in the absence of clear
evidence indicating fraud, duress or other similar circumstance surrounding the
original introduction/seconding/vote in relation to the motion. In this regard,
Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of
instruction/direction from a Councilor's particular constituency/SG, should NOT
count as the type of circumstance that ought to permit a reintroduction or
re-vote on what in substance is the same motion.

Cheers
Mary
Mary W S
Wong
Professor of Law
Director, Franklin 
 Pierce Center 
for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE 
 SCHOOL OF LAW
Two White Street
Concord , NH 
 03301
USA
Email: mary.wong@law.unh.edu
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584 

>>>
"Jonathan Robinson" 01/10/13 1:12 AM >>>
All,

My understanding of the role of the SCI is to determine
how improvements may be made for the future.

When the motion was re-submitted to the December
meeting, I do not believe that there was any procedure to guide the Council on
the re-introduction of a motion that had recently been voted on.

This specific issue has highlighted that we may need
something to guide us on this in future.  I do not believe that the SCI?s
hands are tied at all.

We have one useful example which raised concerns and now
need to look at  as general solution as possible for the future in order
to cover both the example that raised the concern and other cases which may
occur in future.

Thanks,

Jonathan

From:owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Mary.Wong@law.unh.edu
Sent: 09 January 2013 16:58
To: avri@acm.org; gnso-improvem-impl-sc@icann.org
Cc: jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us
Subject: Re:
[gnso-improvem-impl-sc] New task

I support
Avri's points generally, and would add the following in this specific instance:

- the initial vote was properly proposed, seconded and voted on.

- just as ignorance of the law is no excuse, the fact that Councilors were not
aware of the implications of an abstention (when, frankly, they should be as
it's in the rules plain as day) should not permit a re-introduction of
something that was properly introduced and voted on.

- In this case I don't know if the specific constituency impacted had given
instructions to its Councilors as to how to vote. Even if they did not, the
fact remains that these are very clearly set out in the GNSO rules, and if a
constituency or Councilors did not know or did not make the time to
discuss/decide, that is a very poor excuse for reintroducing a motion (again,
one properly introduced, seconded and voted on).

- In an ideal world, the Council should have suspended the matter and referred
the issue of a re-introduction/reconsideration of such a motion (without
necessarily specifying the actual motion or context) to the SCI before
re-opening the vote. As it is, it seems as though the SCI's hands are somewhat
tied since the second motion did get voted on and went through - the mind
boggles at an SCI determination that this re-introduction and vote was improper
or invalid, especially in the currrent somewhat sensitive context within which
ICANN is operating.

Cheers
Mary
Mary W S
Wong
Professor of Law
Director, Franklin 
 Pierce Center 
for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE 
 SCHOOL OF LAW
Two White Street
Concord , NH 
 03301
USA
Email: mary.wong@law.unh.edu
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584 

>>> Avri Doria <avri@acm.org>
01/09/13 2:01 PM >>>

Another thought experiment.

There was a recent g-council vote where, in a rare event, the NCSG Policy
Council had decided on an unanimous vote on an issue. But during the vote, some
voters got confused and voted against.

Would it have been appropriate for us to demand a re-vote? 

Had one of us been g-council Chair, would it have ben right for us to just
reschedule the vote without even getting the g-councl to discuss and perhaps
even vote on the notion of reconsidering the vote?

A general question, anytime from now on, when a SG or Constituency beleive that
its voters went against the will of the SG/C should they be able to have a vote
rescheduled at the next meeting?

avri

On 9 Jan 2013, at 00:54, Avri Doria wrote:

> 
> Even Robert's Rules of Order has rules on when and how a motion can be
reconsidered or rescinded (10.5). The Board of ICANN has rules on
reconsideration in the ByLaws. 
> 
> One specific requirement for reconsideration under Roberts is that one of
those on the prevailing side ask for the reconsideration. In this case it was
the Chair who had been on the losing side.
> 
> We need rules on when it is done and on how it should be done.
> 
> avri
> 
> 
> 
> On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
> 
>> I tend to agree,
>> 
>> From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; 
>> To: 'Avri Doria' <avri@acm.org>;
Jeff Neuman <Jeff.Neuman@neustar.us>; gnso-improvem-impl-sc@icann.org <gnso-improvem-impl-sc@icann.org>; 
>> Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; 
>> Subject: RE: [gnso-improvem-impl-sc] New task 
>> Sent: Wed, Jan 9, 2013 5:27:47 AM 
>> 
>> 
>> Hi all,
>> What I am struggling with procedurally is a basic "Robert's
Rules" type inquiry. Namely: - I don't know of anything procedurally that
would permit a motion that is moved and seconded from being voted on, no matter
how obnoxious anyone finds the motion to be. I guess this is what we are going
to discuss tomorrow.
> 
> the issue was voting again after it had already been defeated.
> 
>> 
>> I would like to ask whether there are specific provisions in the GNSO
Operating Procedures regarding introduction of motions that staff can provide
prior to our call.
> 
> It is all in the g-counci Procedures.
> And is says nothing on reconsideration or rescinding of decisions already
made.
> 
> 
>> 
>> Thank you
>> Anne
>> 
>> 
>> Anne E. Aikman-Scalese
>> Of Counsel
>> Lewis and Roca LLP *
 Suite 700
>> One South Church Avenue 
* Tucson , Arizona 
 85701-1611
>> Tel (520) 629-4428 * Fax (520) 879-4725
>> AAikman@LRLaw.com * www.LewisandRoca.com/Aikman
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>> 
>> -----Original Message-----
>> From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org]
On Behalf Of Avri Doria
>> Sent: Tuesday, January 08, 2013 10:16 PM
>> To: Jeff Neuman; gnso-improvem-impl-sc@icann.org
>> Cc: Jonathan Robinson
>> Subject: Re: [gnso-improvem-impl-sc] New task
>> 
>> 
>> Hi,
>> 
>> I guess I do not support that.
>> 
>> I think a motion should only be voted on once. and that to bring it
back, something must have changed or a reasonable amount of time should have
past.
>> 
>> And no we use votes to count the up to the thresholds defined for
motions to pass. We may euphemistically use the word consensus, but it has
NOTHING to do with consensus. If anything the consensus is in the work of the
WGs and not in the votes of the management team, i.e. g-council.
>> 
>> I believe that what happened in that meeting is something that should
never be allowed to happen again. And if we need rules to keep the chair from
doing things like that, something I admit never entered my imagination of
things that could go wrong, then we need new rules.
>> 
>> A thought experiment: Just imagine the uproar in the council if an
NCUC based g-council chair had dared to some like this when the vote did not go
her way.
>> 
>> avri
>> 
>> On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
>> 
>>> 
>>> Avri,
>>> 
>>> Yes, I know we use voting to measure consensus. But in the end,
the spirit is to achieve consensus on policy items. The fact that it took two
votes to do so should not prejudice the results. Again, if there was some
evidence of wrong doing, fraud etc., that would be one thing. But that did not
happen.
>>> 
>>> I support the ability to re-vote on any item unless there is
evidence of misconduct, harassment, fraud, etc.
>>> 
>>> Best regards,
>>> 
>>> Jeffrey J. Neuman
>>> 
>>> Sent from iPad. Please excuse any typos.
>>> 
>>> 
>>> -----Original Message-----
>>> From: Avri Doria [mailto:avri@ella.com]
>>> Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time
>>> To: Neuman, Jeff
>>> Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson
>>> Subject: Re: [gnso-improvem-impl-sc] New task
>>> 
>>> Hi,
>>> 
>>> Sorry, that may be what the reviews intended at one point, but
that is not what the current regulations say. Due to the agreement between the
SG at the time, a very strict voting regime was adopted and approved by the
Board for the g-council. G-council has such a complicated voting structure that
the Secretariat has a special tool to help them figure out when a motion has
passed or not.
>>> 
>>> To now claim that g-council is a consensus body does not match the
reality of the situation.
>>> 
>>> avri
>>> 
>>> 
>>> On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
>>> 
>>>> 
>>>> I will restate what I said on the Council call. We are not
supposed to as a group focus on voting. We are supposed to come to
"consensus" on items. If there is a "consensus" at any time
of the Council on any given policy (provided that the processes were followed
by the working group making the recommendation), then that is what should
govern. The last evolution and reform of icann report by the London School of
Economics as supported by the Board Governance Committee emphasized this over
and over again. We are not supposed to be a voting body, so lets focus back on
consensus.
>>>> 
>>>> All of the comments I have seen from those that did not like
the result in the last council meeting have not addressed the fact that
ultimately there was a "consensus" on the issue. The fact that there
had to be a second measurement of consensus on the item to me seems irrelevant
and unnecessarily procedural. There was no abuse of process. There was no abuse
within the working group making the recommendation. There is not evidence that
there were improper conflicts, etc. Absent any showing of abuse, harassment,
fraud, illegality, or willful negligence, I believe having a second measurement
of consensus is not an issue.
>>>> 
>>>> Best regards,
>>>> 
>>>> Jeffrey J. Neuman
>>>> 
>>>> Sent from iPad. Please excuse any typos.
>>>> 
>>>> 
>>>> -----Original Message-----
>>>> From: Avri Doria [mailto:avri@ella.com]
>>>> Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time
>>>> To: gnso-improvem-impl-sc@icann.org
>>>> Cc: Jonathan Robinson; Neuman, Jeff
>>>> Subject: Re: [gnso-improvem-impl-sc] New task
>>>> 
>>>> 
>>>> On 8 Jan 2013, at 17:16, Ron Andruff wrote:
>>>> 
>>>>> Assuming that the ultimate desired outcome was for
Councillors to vote as they were permitted to (and possibly directed to by
their group), two remedies were possible.
>>>>> 
>>>> 
>>>> 
>>>> I take real issue with this in that this can only be the case
when it is accordance with adherence to all rules of neutrality, transparency
and accountability.
>>>> 
>>>> Once a vote is given, it is taken and clues from anyone on how
to make the vote work out better are not, in my view or the view of my
stakeholder group, legitimate. It is not for voter to decide that they should
be able vote they way they meant to when they voted another way. If it was,
those poor old jewish voters on finding out the ballot in Florida 
was confusing could have taken back their votes for Buchanan, and Gore would
have been President of the US .
and yes, we may wish with all our hearts that it had been otherwise, but it
wasn't. Voting does not work according to wishes unsaid, it works in terms of
the vote given.
>>>> 
>>>> avri
>>>> 
>>>> 
>>>> 
>>> 
>>> 
>>> 
>> 
>> 
>> 
>> 
>> ----------------------
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> 

-- 
Alain Berranger, B.Eng, MBA
Member, Board of
Directors, CECI, http://www.ceci.ca
Executive-in-residence,
Schulich School of Business, www.schulich.yorku.ca
Treasurer, Global
Knowledge Partnership Foundation, www.gkpfoundation.org
NA representative,
Chasquinet Foundation, www.chasquinet.org
Chair, NPOC, NCSG, ICANN, http://npoc.org/
O:+1
514 484 7824; M:+1 514 704 7824
Skype: alain.berranger

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Re: [gnso-improvem-impl-sc] New task

Alain Berranger

Aikman-Scalese, Anne

Mary Wong

Neuman, Jeff

Alain Berranger

Aikman-Scalese, Anne

Julie Hedlund

Ron Andruff

Marika Konings

Alain Berranger

Avri Doria

Ron Andruff

Aikman-Scalese, Anne

Mason Cole

Alain Berranger

Avri Doria

Ron Andruff

Wolf-Ulrich.Knoben＠t-online.de

Alain Berranger

Ron Andruff

J. Scott Evans

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participants (11)