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

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

Agreed.  Alan

At 21/02/2011 12:04 PM, Neuman, Jeff wrote:

> 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:
> >
> >> + Wouldnâ??t the proposed addition of â??If approved by the Council by
> >> the required thresholdsâ?? 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 â??actâ???
> >>
> >> 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.
> >
> >
> >