RE: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

[Victoria McEvedy <victoria@xxxxxxxxxx>]

If ICANN wants to be a limited liability company -things will have to be 
actioned by the Board to have any legal effect.  These are constitutional 
changes and warrant Board approval in my view -particularly as Chuck says that 
the GNSO has no jurisdiction or power.



I note that Art. X of the Bylaws also say the GNSO is responsible for 
developing and recommending to the ICANN Board substantive policies relating to 
generic top-level domains.



These recommendations are policy -not that dissimilar to the GNSO's recent 
reforms of its own Council processes -what happened with those as to Board 
approval?



It seems that the following Procedure should apply -as appropriate. See Annex A 
to the Bylaws.



11. Council Report to the Board

The Staff Manager will be present at the final meeting of the Council, and will 
have five (5) calendar days after the meeting to incorporate the views of the 
Council into a report to be submitted to the Board (the "Board Report"). The 
Board Report must contain at least the following:

a. A clear statement of any Successful GNSO Vote recommendation of the Council;

b. If a Successful GNSO Vote was not reached, a clear statement of all 
positions held by Council members. Each statement should clearly indicate (i) 
the reasons underlying each position and (ii) the constituency(ies) or 
Stakeholder Group(s) that held the position;

c. An analysis of how the issue would affect each constituency or Stakeholder 
Group, including any financial impact on the constituency or Stakeholder Group;

d. An analysis of the period of time that would likely be necessary to 
implement the policy;

e. The advice of any outside advisors relied upon, which should be accompanied 
by a detailed statement of the advisor's (i) qualifications and relevant 
experience; and (ii) potential conflicts of interest;

f. The Final Report submitted to the Council; and

g. A copy of the minutes of the Council deliberation on the policy issue, 
including the all opinions expressed during such deliberation, accompanied by a 
description of who expressed such opinions.

12. Agreement of the Council

A. Successful GNSO Vote of the Council members will be deemed to reflect the 
view of the Council, and may be conveyed to the Board as the Council's 
recommendation. In the event a GNSO Supermajority Vote is not achieved, 
approval of the recommendations contained in the Final Report requires a 
majority of both houses and further requires that one representative of at 
least 3 of the 4 Stakeholder Groups supports the recommendations. Abstentions 
shall not be permitted; thus all Council members must cast a vote unless they 
identify a financial interest in the outcome of the policy issue. 
Notwithstanding the foregoing, as set forth above, all viewpoints expressed by 
Council members during the PDP must be included in the Board Report.

13. Board Vote

a. The Board will meet to discuss the GNSO Council recommendation as soon as 
feasible after receipt of the Board Report from the Staff Manager.

b. In the event that the Council reached a GNSO Supermajority Vote, the Board 
shall adopt the policy according to the GNSO Supermajority Vote recommendation 
unless by a vote of more than sixty-six (66%) percent of the Board determines 
that such policy is not in the best interests of the ICANN community or ICANN.

c. In the event that the Board determines not to act in accordance with the 
GNSO Supermajority Vote recommendation, the Board shall (i) articulate the 
reasons for its determination in a report to the Council (the "Board 
Statement"); and (ii) submit the Board Statement to the Council.

d. The Council shall review the Board Statement for discussion with the Board 
within twenty (20) calendar days after the Council's receipt of the Board 
Statement. The Board shall determine the method (e.g., by teleconference, 
e-mail, or otherwise) by which the Council and Board will discuss the Board 
Statement.

e. At the conclusion of the Council and Board discussions, the Council shall 
meet to affirm or modify its recommendation, and communicate that conclusion 
(the "Supplemental Recommendation") to the Board, including an explanation for 
its current recommendation. In the event that the Council is able to reach a 
GNSO Supermajority Vote on the Supplemental Recommendation, the Board shall 
adopt the recommendation unless more than sixty-six (66%) percent of the Board 
determines that such policy is not in the interests of the ICANN community or 
ICANN.

f. In any case in which the Council is not able to reach GNSO Supermajority 
vote, a majority vote of the Board will be sufficient to act.

g. When a final decision on a GNSO Council Recommendation or Supplemental 
Recommendation is timely, the Board shall take a preliminary vote and, where 
practicable, will publish a tentative decision that allows for a ten (10) day 
period of public comment prior to a final decision by the Board.

14. Implementation of the Policy

Upon a final decision of the Board, the Board shall, as appropriate, give 
authorization or direction to the ICANN staff to take all necessary steps to 
implement the policy.













Victoria McEvedy

Principal

McEvedys

Solicitors and Attorneys

cid:669FC637-760A-4D2F-B56E-2C180C1870CC



96 Westbourne Park Road

London

W2 5PL



T:    +44 (0) 207 243 6122

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From: Julie Hedlund [mailto:julie.hedlund@xxxxxxxxx]
Sent: 22 July 2010 17:36
To: Rafik Dammak; Chuck Gomes
Cc: Victoria McEvedy; gnso-osc-csg
Subject: Re: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations



Chuck and Rafik,

Rob Hoggarth has helpfully provided the following relevant guidance from the 
BGC report:

Page 46;

"Proposed Action Item: The Board requests: (i) The GNSO constituencies, with 
assistance from Staff as needed, to develop a set of participation rules and 
operating procedures, consistent with the principles outlined above, which all 
constituencies should abide by. The ICANN Board should ask the constituencies 
to develop and publicize common principles within six months; and to implement 
operating rules and procedures consistent with those principles at that time."


He also noted that Staff will likely be asked to notify the Board of the GNSO's 
decisions, but no Board approval is required.

Best regards,

Julie


On 7/22/10 12:26 PM, "Rafik Dammak" <rafik.dammak@xxxxxxxxx> wrote:

Thanks Chuck,

Rafik

2010/7/23 Gomes, Chuck <cgomes@xxxxxxxxxxxx>

No Rafik.  Board approval is not required.  The SIC and Board will simply be 
informed of the action.  Of course, the SIC and Board could always come back 
and say that that the recommendations do not satisfy the Board's 
recommendations and ask for more work.

Chuck


From: Rafik Dammak [mailto:rafik.dammak@xxxxxxxxx]
Sent: Thursday, July 22, 2010 12:12 PM
To: Gomes, Chuck
Cc: Victoria McEvedy; gnso-osc-csg; Julie Hedlund


Subject: Re: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations


Hi Chuck,

just for clarification, after adoption of the motion and recommendation by GNSO 
council, the document will be passed to SIC and board for approval?



Rafik



2010/7/23 Gomes, Chuck <cgomes@xxxxxxxxxxxx>

Please see below Victoria.

Chuck


From: Victoria McEvedy [mailto:victoria@xxxxxxxxxx]
Sent: Wednesday, July 21, 2010 8:58 AM
To: Gomes, Chuck
Cc: gnso-osc-csg; Julie Hedlund


Subject: RE: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

Chuck -if that is the case then perhaps the BGC should be tasked with 
determining compliance/enforcement instead of the GNSO Council?  It certainly 
cannot be fair to put Staff in the position of enforcers for some of the 
structural and other reasons already aired.
[Gomes, Chuck] That is not a typical Board member responsibility.  That it is 
the kind of task that Directors would assign to staff.  Compliance enforcement 
by ICANN has been a very important concern in recent years; that has mostly 
related to registrar agreements but it would seem to me to apply to 
SG/Constituency charters as well.


What models are there within ICANN for follow up and enforcement of changes and 
what routes for stakeholders to raise complaints as to compliance (other than 
the Ombudsman)?
[Gomes, Chuck] There are specific mechanisms in place for complaints about 
registrars and Whois problems, but I am not aware of one for these kind of 
complaints.  Maybe Julie can comment on that.


I do think a deadline should be given for the Charters to be amended by.
[Gomes, Chuck] That is not in the Council's hands.  It is in the Board's court.


Best,



Victoria McEvedy
Principal
McEvedys
Solicitors and Attorneys


96 Westbourne Park Road
London
W2 5PL

T:    +44 (0) 207 243 6122
F:    +44 (0) 207 022 1721
M:   +44 (0) 7990 625 169

www.mcevedy.eu <http://www.mcevedy.eu>
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From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx]
Sent: 21 July 2010 00:44
To: Victoria McEvedy
Subject: RE: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

Victoria,

The Council is not a governing body; it is a manager of the policy development 
process.  The Council has the task of approving the Constituency & SG Operating 
Procedures but has no responsibility to enforce them.  The Board has the 
responsibility of approving the Constituency and Stakeholder Group charters so 
it will ultimately be up to the Board, with staff support, to decide whether 
the charters appropriately reflect the Procedures as well as to enforce 
compliance of the charters.  If the motion was worded as you suggested, it 
could guarantee that certain members of the GNSO community would be up in arms.

Chuck


From: victoria@xxxxxxxxxx [mailto:victoria@xxxxxxxxxx]
Sent: Tuesday, July 20, 2010 7:19 PM
To: Gomes, Chuck
Subject: Re: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

But these are all GNSO constituencies and stakeholder groups ---so within that 
SO ---in relation to which the Council is the governing body. Please explain.
Sent from my BlackBerry(r) wireless device

  _____

From: "Gomes, Chuck" <cgomes@xxxxxxxxxxxx>

Date: Tue, 20 Jul 2010 17:35:52 -0400

To: Victoria McEvedy<victoria@xxxxxxxxxx>; Julie 
Hedlund<julie.hedlund@xxxxxxxxx>; Olga Cavalli<olgacavalli@xxxxxxxxx>

Cc: gnso-osc-csg<gnso-osc-csg@xxxxxxxxx>

Subject: RE: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations


Sorry Victoria.  This will not work because the Council has no authority over 
SGs and Constituencies.

Julie - I suggested one word amendment choices that I think would work.

Chuck


From: owner-gnso-osc-csg@xxxxxxxxx [mailto:owner-gnso-osc-csg@xxxxxxxxx] On 
Behalf Of Victoria McEvedy
Sent: Tuesday, July 20, 2010 5:15 PM
To: Julie Hedlund; Olga Cavalli
Cc: gnso-osc-csg
Subject: RE: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

Julie -suggested amendment:

RESOLVED FURTHER, that the GNSO Council approves [the CSG-WT majority 
recommendations [and/or] the minority recommendations].   GNSO Stakeholder 
Groups and Constituencies are to implement mandatory recommendations and any 
non-mandatory recommendations as adopted by their general body on a vote by the 
full membership and shall incorporate the changes in Charters and any other 
relevant documents, if any, within two months of the date of this resolution. 
Compliance with this recommendation to be within the jurisdiction of and 
supervised by the GNSO Council:
*         Recommended Common Operating Principles and Participation Guidelines 
for GNSO Stakeholder Groups and Constituencies; and  
<http://gnso.icann.org/drafts/draft-csg-recommendations-task-27may10-en.pdf>
Recommendations on a GNSO Database of Community Members 
<http://gnso.icann.org/drafts/draft-csg-recommendations-task-27may10-en.pdf>




Victoria McEvedy
Principal
McEvedys
Solicitors and Attorneys


96 Westbourne Park Road
London
W2 5PL

T:    +44 (0) 207 243 6122
F:    +44 (0) 207 022 1721
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From: Julie Hedlund [mailto:julie.hedlund@xxxxxxxxx]
Sent: 20 July 2010 16:28
To: Victoria McEvedy; Olga Cavalli
Cc: gnso-osc-csg
Subject: Re: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

Dear Victoria,

Please do suggest language.  Staff language was merely a suggestion.

Best,

Julie


On 7/20/10 11:15 AM, "Victoria McEvedy" <victoria@xxxxxxxxxx 
<http://victoria@xxxxxxxxxx> > wrote:
Thank you Julie.

The obvious issue with that language is that it renders every single 
recommendation entirely optional and non-voluntary-and the whole exercise 
nothing more than advisory or for reference-despite the fact that after much 
discussion particular recommendations were agreed by the majority as "must" 
recommendations and the balance 'should' recommendations.

It's currently a motion for each group to carry on as these please and a 
recommendation for the status quo.  I don't think that's an acceptable outcome 
after our 18 months of work.

I would suggest that the recommendations should be accepted as the 'musts' or 
'shoulds' as recommended in each case.

I would be happy to provide some language ---or perhaps the Staff would like to 
do that in the first instance.

Best,


Victoria McEvedy
Principal
McEvedys
Solicitors and Attorneys


96 Westbourne Park Road
London
W2 5PL

T:    +44 (0) 207 243 6122
F:    +44 (0) 207 022 1721
M:   +44 (0) 7990 625 169

www.mcevedy.eu <http://www.mcevedy.eu>
Regulated by the Solicitors Regulation Authority #465972
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This email does not create a solicitor-client relationship and no retainer is 
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From: Julie Hedlund [mailto:julie.hedlund@xxxxxxxxx]
Sent: 20 July 2010 16:03
To: Victoria McEvedy; Olga Cavalli
Cc: gnso-osc-csg
Subject: Re: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

Dear Victoria,

Staff included that suggested language for consideration in the motion since 
Constituencies and Stakeholder Groups may need to amend their charters based on 
the recommendations in the report.

Thanks,
Julie


On 7/20/10 10:54 AM, "Victoria McEvedy" <victoria@xxxxxxxxxx 
<http://victoria@xxxxxxxxxx> > wrote:
Dear WT,

Could someone explain what "for evaluation in amending their charters, as 
appropriate" means? What is the origin of this language?

Thank you and regards,


Victoria McEvedy
Principal
McEvedys
Solicitors and Attorneys


96 Westbourne Park Road
London
W2 5PL

T:    +44 (0) 207 243 6122
F:    +44 (0) 207 022 1721
M:   +44 (0) 7990 625 169

www.mcevedy.eu <http://www.mcevedy.eu>
Regulated by the Solicitors Regulation Authority #465972
This email and its attachments are confidential and intended for the exclusive 
use of the addressee(s).  This email and its attachments may also be legally 
privileged. If you have received this in error, please let us know by reply 
immediately and destroy the email and its attachments without reading, copying 
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This email does not create a solicitor-client relationship and no retainer is 
created by this email communication.


From: owner-gnso-osc-csg@xxxxxxxxx <http://owner-gnso-osc-csg@xxxxxxxxx>  
[mailto:owner-gnso-osc-csg@xxxxxxxxx] On Behalf Of Julie Hedlund
Sent: 20 July 2010 14:54
To: Olga Cavalli
Cc: gnso-osc-csg
Subject: Re: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

Dear Olga,

Here is a draft motion for you to consider.  Please feel free to edit it, of 
course.  Let me know if I can help in any way.

Best regards,

Julie

DRAFT RESOLUTION:  Final Council Action on GCOT & CSG Deliverables

WHEREAS, the GNSO Council, at its 23 June 2010 meeting in Brussels, accepted a 
set of deliverables submitted by the GNSO Council Operations Work Team (GCOT) 
<https://st.icann.org/icann-osc/index.cgi?gnso_operations_team>  and the 
Constituency and Stakeholder Group Operations Work Team (CSG-WT) 
<https://st.icann.org/icann-osc/index.cgi?constituency_operations_team> ;

WHEREAS, a twenty-one (21) day Public Comment Forum 
<http://www.icann.org/en/public-comment/#gcot-csg-recommendations> completed 
between 28 June 2010 and 18 July 2010 and a Staff Summary and Analysis 
<http://forum.icann.org/lists/gcot-csg-recommendations/msg00001.html> has been 
published;
WHEREAS, the GNSO Council agreed to take action on the these deliverables as 
soon as possible after the end of the public comment period;

WHEREAS, there were no public comments submitted that would amend any of the 
GCOT or CSG-WT recommendations;

NOW, BE IT THEREFORE:

RESOLVED, that the GNSO Council approves the following set of GCOT documents, 
without further modification, and directs Staff to publish a new version of the 
GNSO Operating Procedures (GOP) containing these sections and chapters:
*         Section 2.1-Council Member Term Limits 
<http://gnso.icann.org/drafts/draft-gnso-op-procedures-term-limits-24may10-en.pdf>
*         Section 2.4-Board Seat Elections 
<http://gnso.icann.org/drafts/draft-gnso-op-procedures-board-seat-elections-24may10-en.pdf>
*         Section 3.8-Absences and Vacancies 
<http://gnso.icann.org/drafts/draft-gnso-op-procedures-absences-vacancies-11jun10-en.pdf>
*         Chapter 4.0-Voting 
<http://gnso.icann.org/drafts/draft-gnso-op-procedures-voting-11jun10-en.pdf>
*         Chapter 5.0-Statements and Disclosures of Interest 
<http://gnso.icann.org/drafts/draft-gnso-op-procedures-soi-doi-11jun10-en.pdf>
o   Note that two sections, 5.3.2 and 5.3.3, are not approved pending further 
Staff action to be determined.  These sections are footnoted in the document as 
"inactive" until subsequently approved by the OSC and Council.

RESOLVED FURTHER, that the GNSO Council approves the following CSG-WT 
deliverable and directs Staff to provide these recommendations to GNSO 
Stakeholder Groups and Constituencies for evaluation in amending their 
charters, as appropriate:
*         Recommended Common Operating Principles and Participation Guidelines 
for GNSO Stakeholder Groups and Constituencies; and  
<http://gnso.icann.org/drafts/draft-csg-recommendations-task-27may10-en.pdf>
Recommendations on a GNSO Database of Community Members 
<http://gnso.icann.org/drafts/draft-csg-recommendations-task-27may10-en.pdf>

RESOLVED FURTHER, that the GCOT has successfully completed its assignments, as 
chartered by the Operations Steering Committee (OSC); therefore, the GNSO 
Council hereby discharges the GCOT with its gratitude and appreciation for the 
team's dedication, commitment, and thoughtful recommendations.




On 7/19/10 4:36 PM, "Chuck Gomes" <cgomes@xxxxxxxxxxxx 
<http://cgomes@xxxxxxxxxxxx> > wrote:
Sounds good.  Hopefully a Councilor will make the motion and another Councilor 
on the WT will second it.

Chuck


From: owner-gnso-osc-csg@xxxxxxxxx <http://owner-gnso-osc-csg@xxxxxxxxx>  
[mailto:owner-gnso-osc-csg@xxxxxxxxx] On Behalf Of Julie Hedlund
Sent: Monday, July 19, 2010 3:27 PM
To: Olga Cavalli
Cc: gnso-osc-csg
Subject: Re: [gnso-osc-csg] Public Comments on CSG Work Team Recommendations

Dear Olga,

I will forward the draft motion to you as soon as it is ready.  I think we can 
get it to you by tomorrow.

Best,

Julie


On 7/19/10 3:05 PM, "Olga Cavalli" <olgacavalli@xxxxxxxxx 
<http://olgacavalli@xxxxxxxxx> > wrote:
Thanks Julie, let me know once the  motion is ready so we can move it.
Best
Olga

2010/7/19 Julie Hedlund <julie.hedlund@xxxxxxxxx 
<http://julie.hedlund@xxxxxxxxx> >
Dear Work Team members,

The public comment forum on the Task 1 recommendations ended yesterday.  There 
was only one comment and it was not substantive.  I have produced a summary and 
analysis that is available here: 
http://forum.icann.org/lists/gcot-csg-recommendations/msg00001.html.  In 
particular, the comment did not address the Work Team's report.  It related to 
the ICANN comment process in general.

The next step is for the GNSO Council to approve the report.  Staff will 
prepare a draft motion for consideration.

Best regards,

Julie




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