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

["James M. Bladel" <jbladel@xxxxxxxxxxx>]

Ok.  I think this area needs significantly more work, whether we leave
in the "If approved by the Council..." qualifier or not.

My take was that the ICANN Board should reject any policy that, in their
judgment, would harm ICANN (the Corporation, not the Community) as per
their fiduciary responsibilities. This should be the case regardless of
the degree of majority achieved at the Council level.


However, the ICANN Board should -not- reject any GNSO-approved
recommendation that does not present this harm.

So.....I'm still at a loss as to why we would define two separate
thresholds.

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 10:58 am
To: "Gnso-ppsc-pdp@xxxxxxxxx" <gnso-ppsc-pdp@xxxxxxxxx>


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.
> 
> 
>