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Re: [council] Resolutions on reform 2 - amended after NC discussion

The Council is of course free to state its views on anything, but I would
think it ought not do so in ways that are obviously based on logical flaws.

The proposed resolution says that the ERC position is unacceptable because
it gives the contracting parties a veto over the development of consensus
policy.  This of course depends on the following logic chain:  the
registries and registrars constituencies will always vote together; they
will be disincented to try to create consensus because they see no need to;
and if they refuse to come to agreement with the users constituencies, this
will eliminate the possibility of the development of a consensus policy.
Following this same logical chain, the current situation gives the
remaining constituencies, all of which are directly or indirectly user
constituencies, a veto over the development of consensus policy, assuming:
the user constituencies will always vote together, they will be disincented
to try to create consensus because they see no need to, and if they refuse
to come to consensus with the contracting constituencies, this will
eliminate the possibility of the development of a consensus policy.  Or
worse from some perspectives, they will outvote the contracting
constituencies 4-2, and then assert that this represents a consensus.  Oh,
but they might say in response to this last point, the NomCom reps will be
a litmus test; only if they go along with the 4-2 can it reasonably be
called a consensus position.  But putting aside the fact that these same
constituencies have objected to the very concept of NomCom representatives
on the NC, this same argument works on the other side too -- if the vote is
4+3 NomCom vs the 2 contracting constituencies, it seems to me that it
would be fully within the range of possibilities, depending on the reasons
for objection advanced by the contracting parties, that the Board could
find that the recommended policy is supported by a consensus within the
community.  Consensus does not require unanimity.

So let me be clear on how this debate looks to those outside the current NC
environment:  each side jockeying for relative position, with neither side
really trying to find ways to improve the chances for the development of
consensus policy.  This is exactly what drove the Board (through the ERC,
although this approach came originally from the Board itself) to call for
the use of NomCom representatives on the NC, in an effort to improve those
chances.  Indeed, there were strong voices on the Board for a larger number
of NomCom reps, with some believing that it might be appropriate to have an
equal or greater number of NomCom reps to constituency reps, but the ERC
was ultimately persuaded that was not necessary.  But the ERC was also
persuaded that (1) some NomCom reps was a good idea, and (2) that the most
likely structure to create maximum incentives for both sides to come to a
consensus position was to make sure that neither side thought it could
control the outcome.  Now we get reps from the current majority side saying
they like the status quo just fine, thank you; this is hardly surprising,
but at least from the ERC's perspective, they have already concluded that
the status quo is not fine, and they are, IMHO, highly unlikely to
recommend it.

Therefore, if there are legitimate concerns with the current state of the
ERC recommendations, I would suggest that those who are unhappy with them
spend some energy on suggesting substitutes that will at least arguably
deal with the issue that the ERC (and quite frankly almost everyone that
talks to them OTHER than the current NC member constituencies) sees with
the status quo.  Simply saying "I like the status quo," which is clearly
the most common refrain the ERC hears from many different quarters in the
community that for one reason or another resist change, is not likely to be
very persuasive.  And just to deal preemptively with the inevitable
"top-down" arguments, the members of the ICANN Board have a fiduciary
responsibility to use their best judgment to reach decisions that advance
the interests of the organization -- the whole organization.  All
recommendations from various parts of the organization do not inevitably
pass this test, and thus could not, consistent with that fiduciary
obligation, be accepted by any responsible ICANN Board member.  The
solution to this problem is to propose solutions that could fall within
that standard; my sense is that the ERC, at least, does not find the status
quo on the NC to fit that criteria.

Joe Sims
Jones Day Reavis & Pogue
51 Louisiana Avenue NW
Washington, D.C. 20001
Direct Phone:  1.202.879.3863
Direct Fax:  1.202.626.1747
Mobile Phone:  1.703.629.3963

                    Sheppard"            To:     "NC \(list\)" <council@dnso.org>                                  
                    <philip.sheppard     cc:                                                                       
                    @aim.be>             Subject:     [council] Resolutions on reform  2 - amended after NC        
                    Sent by:                                                                                       
                    09/27/02 06:16                                                                                 

Proposed NC resolution (2) amended (some whereas clauses deleted)
1. Whereas the ICANN Evolution and Reform Committee (ERC) has published its
second implementation report

2. Whereas the basis for stakeholder representation in ICANN SOs to date
has been to give equal votes to each affected stakeholder constituency;
3. Whereas the report suggests a significant change in the voting balance
of ICANN stakeholders to be represented in the new Generic Name Supporting
Organisation (GNSO) council whereby it gives twice as many votes to the two
stakeholders who have contracts with ICANN (gTLD registries and
4. Whereas the 4+4+3 proposed voting structure gives a veto to the
contracted suppliers over all ICANN consensus policies, thus negating the
balancing role of the three neutral council members,

The NC therefore resolves that:
any variation from the principle of equal stakeholder constituency
representation and votes in the proposed GNSO council is unacceptable.

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