Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

All,

We are not going to agree on this issue as a group before publishing.  Let's 
make sure the issue is reflected and goes out for comment.  I would like to see 
comment from the community as well as ICANN (which may be a first).  

In the end it may not matter what we (the work team)  say as it may be fought 
out between ICANN staff/board and the contracted parties as this goes to the 
heart of the contracts.  But the issue should be highlighted.
Jeffrey J. Neuman, Esq.
Vice President, Law & Policy
NeuStar, Inc.
Jeff.Neuman@xxxxxxxxxxx



----- Original Message -----
From: Avri Doria [mailto:avri@xxxxxxx]
Sent: Monday, February 21, 2011 11:58 AM
To: Gnso-ppsc-pdp@xxxxxxxxx <gnso-ppsc-pdp@xxxxxxxxx>
Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"


Hi,

I would never presume to say you, or anyone else, was not understanding 
something, so please do not take my response as trying to explain something you 
don't already understand.

What I take from what is in the current Bylaws and what I support keeping, is 
that approval of a consensus policy has two thresholds.

1. If the GNSO has consensus, ie. supermajority, then the Board really can't 
refuse the policy unless they have a contravening supermajority.  That is a 
very powerful ability to give the GNSO - the right to force the requirement for 
a supermajority vote and essentially force the Board's hand on creating a 
policy.

2. On the other hand, if just a democratically reached majority in the GNSO 
approves of the policy then the Board's hand is not forced and they only need a 
majority of the Board to decide whether something is the right policy for ICANN.

And the reason to have this sort of mechanism is that it prevents any one SG 
from creating a roadblock that would prevent a policy they found unfavorable.

I actually think it is a clever way of handling the situation and removing it 
would create all sorts of roadblock scenarios that could deadlock ICANN on 
important issues.

a.



On 21 Feb 2011, at 17:43, James M. Bladel wrote:

> 
> "I would also note that not meeting the higher threshold does not mean
> rejected, it just means accepted at a lower threshold. "
> 
> So, what's the purpose of defining two thresholds?  What I am I not
> understanding on this?
> 
> Thanks--
> 
> J.
> 
> -------- Original Message --------
> Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of
> "act"
> From: Avri Doria <avri@xxxxxxx>
> Date: Mon, February 21, 2011 10:41 am
> To: "Gnso-ppsc-pdp@xxxxxxxxx" <gnso-ppsc-pdp@xxxxxxxxx>
> 
> 
> 
> On 21 Feb 2011, at 14:30, James M. Bladel wrote:
> 
>> + Wouldn’t the proposed addition of “If approved by the Council by
>> the required thresholds” to section 1 (required elements of a PDP) of
>> the new Annex A, prejudge the outcome of the outstanding discussion on
>> whether the Board can act on recommendations that have not been approved
>> by the required GNSO voting threshold? Would it be better to leave this
>> proposed addition out for now and consider this following the outcome of
>> the discussion on the Board can ‘act’?
>> 
>> JMB: I support Jeff's addition. The Board can "act" on GNSO-rejected
>> recommendations by initiating a PDP/Issues Report of their own.
> 
> 
> On this one, I am still of the opinion that the Board can act means they
> can approve as consensus policy that only got a majority vote in the
> council by a supermajority vote.
> 
> 
>> 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.
> 
> I contend that the word 'act' is defined in the same as 'act; is in:
> 
>> 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.
> 
> And that this means that in the event the GNSO only agrees by a majority
> on a policy recommendation the Board can decide to approve it with a
> majority or to disapprove it with a majority.
> 
> Of course I am not a lawyer and may be missing some important modality
> of legal exegesis in my interpretation, but i do think that the same
> word used in two sentences in the same paragraph would normally have the
> same meaning in both sentences.
> 
> I also would add that I do not think this is something that should be
> changed. I certainly expect the Board would take the majority only
> opinion into account, would read the explanations and the reasons
> against and make an informed decision.
> 
> Also, I do not think they need to initiate another PDP in this case. At
> least not as a general rule, though of course I do not suggest making a
> rule that would prevent them from doing so, should they desire.
> 
> I would also note that not meeting the higher threshold does not mean
> rejected, it just means accepted at a lower threshold.
> 
> 
> a.
> 
> 
>