Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"
Please find final version attached that has been submitted for posting. Best regards, Marika From: "James M. Bladel" <jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>> Date: Mon, 21 Feb 2011 12:07:23 -0800 To: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> Cc: "Neuman,Jeff" <Jeff.Neuman@xxxxxxxxxx<mailto:Jeff.Neuman@xxxxxxxxxx>>, Avri Doria <avri@xxxxxxx<mailto:avri@xxxxxxx>>, "Gnso-ppsc-pdp@xxxxxxxxx<mailto:Gnso-ppsc-pdp@xxxxxxxxx>" <gnso-ppsc-pdp@xxxxxxxxx<mailto:gnso-ppsc-pdp@xxxxxxxxx>> Subject: RE: [gnso-ppsc-pdp] Questions / comments - the meaning of "act" At risk of blowing up this list, may I ask which version went out? :) J. -------- Original Message -------- Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act" From: Marika Konings <marika.konings@xxxxxxxxx<mailto:marika.konings@xxxxxxxxx>> Date: Mon, February 21, 2011 2:02 pm To: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx><http://Jeff.Neuman@xxxxxxxxxx>>;, Avri Doria <avri@xxxxxxx<mailto:avri@xxxxxxx>>, "Gnso-ppsc-pdp@xxxxxxxxx<mailto:Gnso-ppsc-pdp@xxxxxxxxx>" <gnso-ppsc-pdp@xxxxxxxxx<mailto:gnso-ppsc-pdp@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><http://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 > > >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> >[mailto:owner-gnso-ppsc-pdp@xxxxxxxxx] On Behalf Of Avri Doria >Sent: Monday, February 21, 2011 2:48 PM >To: Gnso-ppsc-pdp@xxxxxxxxx<mailto: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> >>[mailto:owner-gnso-ppsc-pdp@xxxxxxxxx] On Behalf Of Avri Doria >> Sent: Monday, February 21, 2011 1:58 PM >> To: Gnso-ppsc-pdp@xxxxxxxxx<mailto: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<http://Jeff.Neuman@xxxxxxxxxxx> >>> >>> >>> >>> ----- Original Message ----- >>> From: Avri Doria [mailto:avri@xxxxxxx] >>> Sent: Monday, February 21, 2011 11:58 AM >>> To: Gnso-ppsc-pdp@xxxxxxxxx<mailto:Gnso-ppsc-pdp@xxxxxxxxx> >>> <gnso-ppsc-pdp@xxxxxxxxx<mailto: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<mailto:avri@xxxxxxx>> >>>> Date: Mon, February 21, 2011 10:41 am >>>> To: "Gnso-ppsc-pdp@xxxxxxxxx<mailto:Gnso-ppsc-pdp@xxxxxxxxx>" >>>> <gnso-ppsc-pdp@xxxxxxxxx<mailto: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. >>>> >>>> >>>> >>> >>> >> >> >> > > > Attachment:
PDP-WT Proposed Final Report - FINAL - 21 February 2011.pdf
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