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

Timothy Denton tim at tmdenton.com
Tue Nov 10 20:54:28 UTC 2015


I agree with Alan's position in this, for the reasons he stated.

TMD

On 11/10/2015 3:45 PM, Kan Kaili wrote:
> Hi, Alan,
> Thank you very much for your prompt reply.
> I completely agree with your analysis, especially regarding the 
> side-effects that my suggestion may create.  Thus, although its 
> intention was to make an improvement in extreme cases which may rarely 
> happen, but now I would like to withdraw this suggestion, and 
> agree that your position as the one of ALAC on this issue.
> Also, thank you very much for answering my question on the calculation 
> of votes.
> Best regards,
> Kaili
>
>     ----- Original Message -----
>     *From:* Alan Greenberg <mailto:alan.greenberg at mcgill.ca>
>     *To:* Kan Kaili <mailto:kankaili at gmail.com> ; alac
>     <mailto:alac at atlarge-lists.icann.org>
>     *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 <mailto:alan.greenberg at mcgill.ca>
>>         To: alac <mailto:alac at atlarge-lists.icann.org>
>>         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 at icann.org"
>>>             <accountability-cross-community at 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
>>>
>>>             _______________________________________________
>>>             Accountability-Cross-Community mailing list
>>>             Accountability-Cross-Community at icann.org
>>>             https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>>         ------------------------------------------------------------------------
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>>         )
>>
>
>
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-- 
Timothy Denton 613-789-5397 line 613 222 1850 cell
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