Re: [gnso-improvem-impl-sc] Re: Background on New Issues: Email Voting and Procedural Waivers

[Thomas Rickert <rickert@xxxxxxxxxxx>]

All,
with respect to the question of waivers, I guess there is a comparable scenario 
in corporate law that may be useful. Procedural requirements such as invitation 
periods or other formal requirements for invitations to shareholders' meetings 
can be waived only on condition that the waiver is supported unanimously. 

For our scenario that could mean that a waiver would only be possible if all 
Councillors unanimously support it. That would give the Council flexibility to 
take action on motions that are undisputed, but where i.e. the motions deadline 
has been missed. 

On the other hand, where a Councillor is not in a position to take action, e.g. 
because he or she could not discuss the matter sufficiently with the respective 
group, the Councillor would not support the waiver and then the waiver cannot 
be granted and the situation would remain as it is today.

Thanks,
Thomas

=============
thomas-rickert.tel
+49.228.74.898.0

> Am 01.11.2013 um 14:32 schrieb Julie Hedlund <julie.hedlund@xxxxxxxxx>:
> 
> Thank you Anne.  Those are all important points. I think you are right that 
> there could be a lot of variables to consider with respect to waivers.
> 
> Best regards,
> Julie
> 
> From: <Aikman-Scalese>, Anne <AAikman@xxxxxxxxxx>
> Date: Thursday, October 31, 2013 6:18 PM
> To: Julie Hedlund <julie.hedlund@xxxxxxxxx>, 
> "gnso-improvem-impl-sc@xxxxxxxxx" <gnso-improvem-impl-sc@xxxxxxxxx>
> Cc: "Cover, Cynthia" <CCover@xxxxxxxxxx>
> Subject: RE: Background on New Issues: Email Voting and Procedural Waivers
> 
> Thanks Julie – very helpful.  One of the issues that is problematic in 
> relation to the second task is that a Councilor won’t  know in advance of the 
> meeting  whether a requirement will be waived or not and thus may not have 
> had time to address the issue(s) with his/her constituency or stakeholder 
> group.  Multiple late motions would present a large problem in relation to 
> any given meeting.  ( As to motions, it seems the ten calendar day advance 
> notice has been working well in terms of the ability to brief stakeholders 
> and receive input prior to GNSO Council meetings. )
>  
> We should likely look at several different types of situations that might 
> make a waiver procedure desirable.    Those who have been or are sitting on 
> GNSO Council now may be good resources for suggestions as to various 
> situations where waiver might  be appropriate.
>  
> Anne
>  
> <image001.gif>
> Anne E. Aikman-Scalese, Of Counsel
> Lewis Roca Rothgerber LLP | Suite 700
> One South Church Avenue | Tucson, Arizona 85701-1611
> (T) 520.629.4428 | (F) 520.879.4725
> AAikman@xxxxxxxxxx | www.LRRLaw.com
>  
> <image002.jpg>
> Lewis and Roca LLP is now Lewis Roca Rothgerber LLP.
>  
> From: Julie Hedlund [mailto:julie.hedlund@xxxxxxxxx] 
> Sent: Thursday, October 31, 2013 2:58 PM
> To: Aikman-Scalese, Anne; gnso-improvem-impl-sc@xxxxxxxxx
> Cc: Cover, Cynthia
> Subject: Re: Background on New Issues: Email Voting and Procedural Waivers
>  
> Dear Anne,
>  
> As the Council noted in Durban during its wrap up meeting, the current 
> procedures do not include a process for the Council to hold a vote outside of 
> a meeting, although they do allow absentee voting for certain votes and under 
> certain conditions, but only follow a meeting during which a vote was taken.  
> Please see Section 4.0 Voting in the GNSO Council Operating Procedures (page 
> 11) at: http://gnso.icann.org/en/council/op-procedures-13jun13-en.pdf.  Also, 
> the language in this section presumes that a vote is taking place at a 
> meeting.  For example, Section 4.1 Quorum says, "In order for the GNSO 
> Council to initiate a vote, a quorum must be present."  The word "present" 
> implies presence at a meeting.  Section 4.2 Voting Thresholds says, "For all 
> votes taken, the number of eligible voters in each House shall be fixed to 
> the number of seats allocated in the Bylaws (a.k.a. the denominator) and is 
> not affected by the number of members present or absent at the meeting 
> [emphasis added] in which the motion or other action is initiated."
>  
> With respect to waiving requirements, as the Council noted there are no 
> provisions in the procedures.  One of the issues noted by the Council in 
> Durban, for example, was that it could not consider a motion that was 
> submitted after the deadline for submitting reports and motions.  Section 3.3 
> Notice of Meetings states, "Reports and motions should be submitted to the 
> GNSO Council for inclusion on the agenda as soon as possible, but no later 
> than 23h59 Coordinated Universal Time (UTC) on the day, 10 calendardays 
> before the GNSO Council meeting."  There is no language in this section that 
> allows the Council to make an exception to this notice requirement.  
> Moreover, there is no general statement in the procedures that allows the 
> Council to waive its procedures or as Jonathan noted below under which 
> "formal council procedure can be bypassed in the event that there is no 
> objection from the council."
>  
> I hope this is helpful, but please let me know if you have additional 
> questions.
>  
> Best regards,
> Julie
>  
> From: <Aikman-Scalese>, Anne <AAikman@xxxxxxxxxx>
> Date: Thursday, October 31, 2013 3:23 PM
> To: Julie Hedlund <julie.hedlund@xxxxxxxxx>, 
> "gnso-improvem-impl-sc@xxxxxxxxx" <gnso-improvem-impl-sc@xxxxxxxxx>
> Cc: "Cover, Cynthia" <CCover@xxxxxxxxxx>
> Subject: RE: Background on New Issues: Email Voting and Procedural Waivers
>  
> Thanks Julie.   I will be coming in over Adobe from Miami Beach (INTA 
> Leadership) on November 16.  ( For some reason I had an SCI call on my 
> calendar yesterday, but nobody was there so my mistake.)
>  
> Regarding the two new items, can you provide us with the EXISTING rules on 
> (1)Voting and (2) Waiving requirements in the Operating Procedures?
>  
> Thanks and congrats to the Charter team  on the approval of the new Charter!
> Anne
>  
> <image001.gif>
> Anne E. Aikman-Scalese, Of Counsel
> Lewis Roca Rothgerber LLP | Suite 700
> One South Church Avenue | Tucson, Arizona 85701-1611
> (T) 520.629.4428 | (F) 520.879.4725
> AAikman@xxxxxxxxxx | www.LRRLaw.com
>  
> <image002.jpg>
> Lewis and Roca LLP is now Lewis Roca Rothgerber LLP.
>  
> From:owner-gnso-improvem-impl-sc@xxxxxxxxx 
> [mailto:owner-gnso-improvem-impl-sc@xxxxxxxxx] On Behalf Of Julie Hedlund
> Sent: Thursday, October 31, 2013 11:48 AM
> To: gnso-improvem-impl-sc@xxxxxxxxx
> Subject: [gnso-improvem-impl-sc] Background on New Issues: Email Voting and 
> Procedural Waivers
>  
> Dear SCI members,
>  
> In our last meeting on 08 October Ron Andruff suggested it would be helpful 
> to frame the two new issues the GNSO Council has asked the SCI to study  — 
> email voting and procedural waivers --  in the format of the questions listed 
> in the charter.  In addition, for future requests as Mikey O'Conner suggested 
> staff will create an online form that requesters can complete when they have 
> issues to bring to the SCI.  The format in the charter is:
> Which group do you represent? (E.g. Council, WG.)
> To which rules or processes do you refer?
> Please outline the problems
> What specific changes do you propose to address the identified problems?
> Do you have any additional suggestion for making the rules/processes easier 
> to administer?
>  
> In particular, the GNSO Council requested that the SCI should take up these 
> two new issues in its Wrap Up meeting in Durban on 17 July.   Accordingly, 
> I've reviewed the transcript from that meeting and pulled out the relevant 
> information from the brief discussion of these topics.  I've put that 
> information into the form of the questions from the charter.  Please see the 
> information below and also on the wiki at: 
> https://community.icann.org/display/gnsosci/16+November+2013.  These issues 
> are on the agenda for the SCI's next meeting, which will be held face-to-face 
> in Buenos Aires on Saturday, 16 November from 0700-0845 local time.  The GNSO 
> Secretariat will send out a notice and reminders for the meeting.
>  
> Best Regards,
>  
> Julie 
>  
> Julie Hedlund, Policy Director
>  
> Email voting:
> 1.     Which group do you represent? GNSO Council
> 2.     To which rules or processes do you refer? Voting
> 3.     Please outline the problems: The Council does not have a mechanism to 
> conduct votes outside of a meeting.
> What specific changes do you propose to address the identified problems?  The 
> SCI should consider whether and how the Council could vote outside of a 
> meeting and under what circumstances.  Quote from Jonathan Robinson in the 
> Council transcript at the Wrap Up Meeting in Durban on 18 July 2013: "So I 
> wanted - an issue I wanted us to consider maybe giving to the SCI and then to 
> the group or to a committee to look at is I’d like to rethink about whether 
> potentially voting by email or something like that is a possibility? I know 
> we’ve looked at it on and off over the years.…And if that would help speed 
> things along it would be great to just look at that issue in just maybe we 
> can’t do it first time around obviously but for future..."  He raised this 
> issue because the Council was in the process of scheduling a special meeting 
> in August to conduct a vote.
> Do you have any additional suggestion for making the rules/processes easier 
> to administer? Voting by email could in some circumstances enable the Council 
> to avoid having to schedule a special meeting for a vote that has to occur 
> quickly.
>  
> Waivers and/or Exceptions to the GNSO Council Operating Procedures
> 1.     Which group do you represent? GNSO Council
> 2.     To which rules or processes do you refer? Submitting a motion and 
> possibly other procedures
> Please outline the problems: The Council does not have a mechanism to waive 
> or invoke an exception to and of its operating procedures.  An example is 
> whether the deadline for submitting motions could be waived in certain 
> circumstances.  Quote from Jonathan Robinson in the transcript at the Wrap Up 
> Meeting in Durban on 18 July 2013: "And essentially I wasn’t empowered as 
> chair by our rulebook to allow that motion to be put on the table even if 
> technically although we have done it by precedent and prior practice, even if 
> no one objected from the council I didn’t really - there isn’t really device 
> in the rulebook to allow that to take place. So I personally I think that’s 
> an area we should look at is the - when and under what circumstances - formal 
> council procedure can be bypassed in the event that there is no objection 
> from the council?"
> What specific changes do you propose to address the identified problems?  The 
> SCI should consider whether and how the Council could vote outside of a 
> meeting and under what circumstances.
> Do you have any additional suggestion for making the rules/processes easier 
> to administer? A waiver mechanism could allow the Council to consider a 
> motion or document after the deadline of notice/submission to the Council has 
> passed.
>  
>  
> 
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