RE: [gnso-policyimpl-dt] Updated version of Policy & Implementation WG Charter - Holly's comments

["Aikman-Scalese, Anne" <AAikman@xxxxxxxxx>]

Alan,
I agree with you and I think that is what I said - the WG will have to know the 
existing provisions before it can make recommendations.  There is some 
interesting overlap here with the work of the ATRT2.  They are putting out an 
RFP for the review of the effectiveness of the Policy Development Process.  One 
of the statements made in that RFP is

The current position held by many stakeholders, and the Board itself based on 
precedent, is that policy should be decided by
the GNSO, but failing its ability to do so, the Board may take appropriate 
action for which there is no GNSO policy recommendation.

I have to tell you that the above is not at all my understanding of the 
governance structure of ICANN based on reading the By-Laws and watching the 
decision-making over the last three years (admittedly a very short time 
compared to most of you.)  My own impression of policy-making at ICANN is that 
the ICANN Board makes policy after receiving policy recommendations from the 
GNSO and "Advice" from the GAC  (which can and does include policy advice.)    
Ithink of this by comparison to a statue of "Lady Justice" holding scales and 
on one side of the scales you have GNSO policy advice and on the other side of 
the scales, you have GAC Advice and the Board has to balance these two inputs.

This structure appears to me to be necessary in that it is ICANN as a 
corporation that has undertaken the Affirmation of Commitments and the 
directors on the Board are under a fiduciary duty to act pursuant to the AoC.  
Thus, they cannot totally delegate policy-making to any other entity or 
advisory group (under the current structure, governance documents, and 
contractual obligations.)  So a recommendation for GNSO to decide or determine 
policy, rather than the Board itself deciding policy, would appear to me to 
involve a wholesale shift in governance and raise very big issues in relation 
to the AoC undertaking.  I am not saying this should not be done.  I am only 
saying that the WG, in order to make recommendations for change, will have to 
get a good grasp on the existing rules of governance.

A recent letter to the Board from Jeff Neuman asks for a By-Laws amendment 
requiring the Board to come back to the GNSO if it takes action which varies 
from GNSO recommendations.  It sounds to me like that letter is looking for 
GNSO policy advice to have an equal status to GAC Advice.  In other words, "if 
you, the ICANN Board, are not going to follow our GNSO position, you had better 
come back and seek our input again before you do anything."

At that point, you have to look at what is truly a "GNSO position" and whether 
or not that position was developed pursuant to a PDP involving all stakeholders 
since the fact is all stakeholders don't sit or vote on the GNSO Council.  This 
may reveal a structural weakness in the GSNO constitution itself and my own 
view is that this topic is not beyond the scope of the Policy and 
Implementation WG in terms of making recommendations.

Anne
.

[cid:159432821@20062013-1B7A]Anne E. Aikman-Scalese
Of Counsel
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________________________________
From: Alan Greenberg [mailto:alan.greenberg@xxxxxxxxx]
Sent: Thursday, June 20, 2013 2:19 PM
To: Aikman-Scalese, Anne; 'Marika Konings'; Holly Raiche; 
gnso-policyimpl-dt@xxxxxxxxx
Subject: RE: [gnso-policyimpl-dt] Updated version of Policy & Implementation WG 
Charter - Holly's comments

Anne, the WG must be aware of what is in the current Operating Principles, but 
their recommendations are not constrained by what is there.

Alan

At 20/06/2013 03:53 PM, Aikman-Scalese, Anne wrote:

Thanks Marika.  I do think Item 1. has to be modified to add "in light of 
existing GNSO Operating Procedures".  The current statement is a bit open-ended 
in that it doesn't seem to take into account that the Drafting Team (and the 
Working Group) will have to appreciate the existing structure and rules.

For example, the current GNSO Council Operating Procedures provide that if the 
GNSO Council has a problem with staff implementation, they are to seek review 
of that implementation by way of a letter to the ICANN Board and this existing 
provision (as well as others in the Operating Procedures and the PDP Manual) 
will need to be considered in the process of trying to tackle this difficult 
topic.

What I am trying to say is that the scope of the WG really must include getting 
a handle on the way things are supposed to work now based on existing Operating 
Procedures and the PDP manual before they can make specific recommendations.

Anne

[[]] Anne E. Aikman-Scalese
Of Counsel
Lewis and Roca LLP • Suitee 700
One South Church Avenue • Tucson, Arizona 857701-1611
Tel (520) 629-4428 • Fax (520) 879-4725 
AAikman@xxxxxxxxx<mailto:AAikman@xxxxxxxxx> • 
www.LewisandRoca.com/Aikman<http://www.lewisandroca.com/Aikman>

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________________________________
From: owner-gnso-policyimpl-dt@xxxxxxxxx [ 
mailto:owner-gnso-policyimpl-dt@xxxxxxxxx] On Behalf Of Marika Konings
Sent: Thursday, June 20, 2013 4:10 AM
To: Marika Konings; Holly Raiche; gnso-policyimpl-dt@xxxxxxxxx
Subject: Re: [gnso-policyimpl-dt] Updated version of Policy & Implementation WG 
Charter - Holly's comments

Dear All,

Following further conversations with Holly, I would like you to consider the 
following rewording of the mission & scope section to address the points raised 
by Holly in her original email (note that Holly supports these as reworded):

The Policy & Implementation Working Group is tasked to provide the GNSO Council 
with a set of recommendations on:

1.     A set of principles that would underpin any GNSO policy / implementation 
related discussions;
2.     Recommendations on a process for providing GNSO “Policy Guidance”, 
including criteria for when it would be appropriate to use such a process 
instead of a GNSO Policy Development Process;
3.     A framework for implementation related discussions related to GNSO 
Policy Recommendations, including criteria for when something is to be 
considered policy and when it should be considered implementation, and;
4.     Further guidance on how GNSO Implementation Review Teams are expected to 
function and operate.

Please feel free to share any additional comments and/or edits you may have on 
this section or other parts of the draft charter with the mailing list.

With best regards,

Marika

From: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx> 
>
Date: Thursday 20 June 2013 09:28
To: Holly Raiche < 
h.raiche@xxxxxxxxxxxxxxxx<mailto:h.raiche@xxxxxxxxxxxxxxxx>>, " 
gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>" < 
gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>>
Subject: Re: [gnso-policyimpl-dt] Updated version of Policy & Implementation WG 
Charter - Holly's comments

Holly, just a question of clarification, your proposed edits seem to have 
removed two objectives that were identified by the GNSO Council as needing to 
be included as a minimum, namely:

  *   Recommendations on a process for providing GNSO "Policy Guidance"
  *   A framework for implementation related discussions related to GNSO Policy 
Recommendations

Was that intentionally?

In relation to your proposed addition 'Recommendations on  how to determine 
whe[n] a policy should only be finalised through a PDP process and when it can 
be determined by a less formal process', Annex A of the ICANN Bylaws already 
states that 'If the GNSO is conducting activities that are not intended to 
result in a Consensus Policy, the Council may act through other processes'. The 
main issue (at least from my perspective) is that there currently are no formal 
'other processes' by which such other activities, that are not intended to 
result in consensus policies, can be carried out. The GNSO has used various 
ad-hoc processes in the past (with varying degrees of success), but as these 
processes do not have any formal standing under the current Bylaws or GNSO 
Operating Procedures, there is also no formal requirement for the ICANN Board 
to recognise these recommendations in a similar way as they are required to do 
for PDP recommendations (see section 9 of Annex A). Hence, the importance of 
developing such other processes, such as "GNSO Policy Guidance", to allow for 
other mechanisms to develop GNSO non-consensus policy recommendations.

With best regards,

Marika

From: Holly Raiche < 
h.raiche@xxxxxxxxxxxxxxxx<mailto:h.raiche@xxxxxxxxxxxxxxxx>>
Date: Thursday 20 June 2013 01:53
To: " gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>" < 
gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>>
Cc: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx> >
Subject: Re: [gnso-policyimpl-dt] Updated version of Policy & Implementation WG 
Charter - Holly's comments

Thanks everyone for the comments, particularly Marika for turning the document 
around so quickly.

As we agreed at the last meeting, what we need to lock in by the next meeting 
is the Mission and Scope.  Once that is done, we can move on to the objectives 
and goals (noting how little time we have for both).

With that in mind, I'd like to clarify the  suggested Mission and Scope 
statement, reflecting where we got to at the last meeting.

And my recollection is that there was still discussion on what is 'policy' - 
not that this DT will define it, but that it is an issues.  Specifically, there 
was discussion arising from the 'Framework" document on policy - anything from 
the more formal 'policy' decisions made through a PDP process to the less 
formal 'policy' as procedure.

AS Chuck has said in his most recent comments, 'all processes, policy and 
implementation and the framework for interaction between the two need to be 
multi-stakeholder.  so our scope is clearly beyond just policy as PDP.

So may I suggest the following as a revised Mission and Scope:

Key Assumptions:
Processes for the development of a formal policy through the PDP process are 
well understood
Processes for determining whether the development of a policy should be 
undertaken through a PDP process or a less formal process are not well 
understood
The process for determining when a policy has been decided and the remaining 
task is to implement the policy is not well defined
All processes, policy and implementation and the framework for interaction 
between the two need to be multi-stakeholder

Mission for the WG:

The Policy & Implementation Working Group is tasked to provide the GNSO Council 
with a recommendations on:
<!--[if !supportLists]-->1.    Principles that underpin any GNSO policy / 
implementation related discussions;
<!--[if !supportLists]-->2.     <!--[endif]-->Recommendations on  how to 
determine whe a policy should only be finalised through a PDP process and when 
it can be determined by a less formal process;
<!--[if !supportLists]-->3.     <!--[endif]-->A framework for determining when 
an issue is about 'policy' and when the issue has progressed to the 
implementation of policy, and;
<!--[if !supportLists]-->4.     <!--[endif]-->Further guidance on how GNSO 
Implementation Review Teams are expected to function and operate.


I realise that the text will take discussion, but my fear is that, unless we 
put the issues into the Mission and Scope section, they will be lost.

Holly







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________________________________

For more information about Lewis and Roca LLP, please go to 
www.lewisandroca.com<http://www.lewisandroca.com/>.

Phoenix (602)262-5311           Reno (775)823-2900
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