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

[Marika Konings <marika.konings@xxxxxxxxx>]

Apologies, but I have already submitted the report for publication, so no
further changes are possible.

Marika

On 21/02/11 20:58, "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx> wrote:

>
>Avri,
>
>The wording you have used prejudges that the bylaws allow something to be
>declared consensus policies with only a majority, which is arguably more
>prejudicial.  If it is not too late, I would be fine with a factual
>statement such that just recites what the provision states:
>
>"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 understand your passion for this issue, but remember that those on the
>other side are just as passionate.
>
>Jeffrey J. Neuman 
>Neustar, Inc. / Vice President, Law & Policy
>
>
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>
>
>
>-----Original Message-----
>From: owner-gnso-ppsc-pdp@xxxxxxxxx
>[mailto:owner-gnso-ppsc-pdp@xxxxxxxxx] On Behalf Of Avri Doria
>Sent: Monday, February 21, 2011 2:48 PM
>To: Gnso-ppsc-pdp@xxxxxxxxx
>Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"
>
>
>Dear Jeff,
>
>Oh course, I just want to _insist_ that the highlighting is done fairly
>and properly.  This is an issue I feel very strongly about and is an
>issue that I seen crop up in a couple of places now and one I feel I must
>be very clear about.
>
>For example, in recommendation 42, I find that differentiation along the
>lines of narrow and broad is prejudicial.  i also fined the explanation
>to be in error.  It is not the case that the "even if it was not approved
>by the required GNSO voting threshold"  but rather that "even if it was
>approved by a required majority GNSO voting threshold as allowed in the
>current By-laws instead of the supermajority threshold as also allowed in
>the current By-laws).    I apologize for not having pointed this out
>earlier, but until this discussio, I did not fully realize the prejudice
>contained in the current wording.  Ie. the discussion made me study it
>more closely.  and I thank you for that.
>
>
>Note:   while looking for the text in questions, which I never found i
>found the following
>
>>  Recommendation 1.
>> 
>> The PDP-WT discussed whether the voting thresholds currently n place
>
>should be 'in place'
>
>
>a.
>
>
>On 21 Feb 2011, at 20:05, Neuman, Jeff wrote:
>
>> Avri,
>> 
>> As I said in my earlier e-mail, the issue should be highlighted and we
>>should get public input.  That should be the key take away from my point
>>in the last e-mail.
>> 
>> 
>> Jeffrey J. Neuman
>> Neustar, Inc. / Vice President, Law & Policy
>> 
>> 
>> The information contained in this e-mail message is intended only for
>>the use of the recipient(s) named above and may contain confidential
>>and/or privileged information. If you are not the intended recipient you
>>have received this e-mail message in error and any review,
>>dissemination, distribution, or copying of this message is strictly
>>prohibited. If you have received this communication in error, please
>>notify us immediately and delete the original message.
>> 
>> 
>> 
>> -----Original Message-----
>> From: owner-gnso-ppsc-pdp@xxxxxxxxx
>>[mailto:owner-gnso-ppsc-pdp@xxxxxxxxx] On Behalf Of Avri Doria
>> Sent: Monday, February 21, 2011 1:58 PM
>> To: Gnso-ppsc-pdp@xxxxxxxxx
>> Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"
>> 
>> 
>> Hi,
>> 
>> I am sure you are right.  But we should make sure that the opposite
>>sides of the issues are well outlined as opposed to only one side being
>>discussed or just leaving the issues undiscussed.
>> 
>> And I see ABSOLUTELY NO REASON why this should be a issue discussed in
>>private between Contracted Parties and Staff.  This is policy and is the
>>business of us all, especially the GNSO Non Contracted Parties.  Your
>>contracts are our business, as the community is ICANN.  the staff is not
>>ICANN, it is just one part of ICANN.  This is a fundamental point of the
>>PDP and should not be lost in any chair level presumptions about
>>different avenues of recourse!
>> 
>> a.
>> 
>> On 21 Feb 2011, at 18:04, 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:
>>>> 
>>>>> + 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.
>>>> 
>>>> 
>>>> 
>>> 
>>> 
>> 
>> 
>> 
>
>
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