[council] Nominating Committee Appointees (NCA) selection to two Houses‏

[carlos dionisio aguirre <carlosaguirre62@xxxxxxxxxxx>]

FYI - the ICANN General Counsel's advice on this issue, below
Carlos Dionisio Aguirre
NCA GNSO Council - ICANN
former ALAC member by LACRALO
Abogado - Especialista en Derecho de los Negocios
Sarmiento 71 - 4to. 18 Cordoba - Argentina -
*54-351-424-2123 / 423-5423
http://ar.ageiadensi.org 


From: john.jeffrey@xxxxxxxxx
To: carlosaguirre62@xxxxxxxxxxx
CC: Samantha.Eisner@xxxxxxxxx; robert.hoggarth@xxxxxxxxx; 
liz.gasster@xxxxxxxxx; daniel.halloran@xxxxxxxxx
Date: Wed, 19 Oct 2011 10:17:05 -0700
Subject: Fwd: formal position requirement



Dear CarlosThank you for your inquiry. 
Please see the attached note that I forwarded to the GNSO and the NomCom
Chairs.


John Jeffrey
General Counsel & Secretary
ICANN
JJ@xxxxxxxxx


Begin forwarded message:From: John Jeffrey <john.jeffrey@xxxxxxxxx>
Subject: Fwd: formal position requirement
Date: October 19, 2011 9:19:12 AM PDT
To: Stéphane Van Gelder <stephane.vangelder@xxxxxxxxx>, Adam Peake 
<ajp@xxxxxxxxxxxx>
Cc: Samantha Eisner <Samantha.Eisner@xxxxxxxxx>, Robert Hoggarth 
<robert.hoggarth@xxxxxxxxx>, Liz Gasster <liz.gasster@xxxxxxxxx>, Daniel 
Halloran <daniel.halloran@xxxxxxxxx>
Bcc: John Jeffrey <john.jeffrey@xxxxxxxxx>
















Dear Stephane and Adam,I write to you jointly as Chairs of the GNSO and the
NomCom.  I received the attached note
from Carlos Dionisio Aguirre regarding the NomCom appointees to the GNSO and
noted the need to provide advice on the ICANN Bylaws. Article X, Section 3.e 
requires the NomCom to appoint three
members of the GNSO Council.  Of those
appointees, one shall be non-voting, and “one voting representative shall be
assigned to each House . . . by the Nominating Committee.”  This Bylaws 
provision requires the NomCom to
assign voting representatives among the GNSO’s contracted and non-contracted
party houses.  Pursuant to the Bylaws,
this assignment work should not be left to the GNSO.I appreciate that with the 
GNSO Restructuring, the initial
assignment of the single NomCom Appointee (NCA) selected by the NomCom in 2010
did not pose a lot of complexity. 
However, now that the restructured form of the GNSO Council is in place
and the NomCom is making appointments for multiple NCAs, it is important for
the NomCom to complete the assignment process and identify the roles of the NCAs
to the GNSO.  If possible, I encourage
the NomCom to complete this assignment process prior to the ICANN AGM in Dakar,
Senegal and the seating of the new GNSO Council members (28 October 2011).Due 
to the NomCom’s appointment rotation (2 NCAs to the GNSO
in odd years, 1 NCA in even years), it may be beneficial for the NomCom and
GNSO to consult together to determine if the GNSO would be better served by
having both voting NCAs rotate at the same time, or if it is preferable to have
1 voting and 1 non-voting NCA rotate at the same time, with the term of the
other voting NCA rotating in even years. 
Further, as the NomCom and the GNSO continue dialogue on identifying
skill sets for the NCAs to the GNSO, skills desirable for each role 
(Non-Contracted
House NCA, Contracted House NCA and Non-Voting NCA) could be identified for
NomCom consideration.I look forward to seeing you in Dakar.  If you have any 
questions, or we can be of assistance to you, please let us know.



John Jeffrey
General Counsel & Secretary
ICANN
JJ@xxxxxxxxx


From: carlosaguirre62@xxxxxxxxxxx
To: john.jeffrey@xxxxxxxxx
Subject: formal position requirement
Date: Mon, 10 Oct 2011 16:09:01 +0000

 Cordoba, October 10th 2011. Dear John JeffreyICANN General Councel I’m 
writting to you, to ask your formal  opinion as General Councel in relation 
with the meaning of one clause of the ICANN bylaws. First, let me introduce 
myself: I`m Carlos Dionisio Aguirre, some of my hats are: Lawyer Specialist in 
business law, teacher of Economy, and Informatic`s Legislation at National 
University of Cordoba in Argentina , International Director of AGEIA DENSI 
(Academic NGO), Vice President of ADIAR (Argentinian Cyberlaw Lawyers 
Asociation), Former ALAC member elected and reelected by LACRALO, and currently 
ICANN NCA GNSO Council. Im very interested in your particular opinion & 
intelligence (understanding) about the following clause, and as ICANN General 
Councel:   “BYLAWS FOR INTERNET CORPORATION FOR ASSIGNED NAMES AND 
NUMBERS…ARTICLE VII: NOMINATING COMMITTEE …Section 3. GNSO COUNCIL1. Subject to 
the provisions of Transition Article XX, Section 5 of these Bylaws and as 
described in Se!
 ction 5 of Article X, the GNSO Council shall consist of:a. three 
representatives selected from the Registries Stakeholder Group;b. three 
representatives selected from the Registrars Stakeholder Group;c. six 
representatives selected from the Commercial Stakeholder Group;d. six 
representatives selected from the Non-Commercial Stakeholder Group; ande. three 
representatives selected by the ICANN Nominating Committee, one of which shall 
be non-voting, but otherwise entitled to participate on equal footing with 
other members of the GNSO Council including, e.g. the making and seconding of 
motions and of serving as Chair if elected. One Nominating Committee Appointee 
voting representative shall be assigned to each House (as described in Section 
3(8) of this Article) by the Nominating Committee.” This formal asking, has to 
do particularly with the last sentence in the paragraph exposed and highlighted 
in red.  Some opinions by me, first: ( you can contradict if you believe I am 
wron!
 g, please) -Bylaws are mandatory into ICANN environment for all and ev
erybody.-All into ICANN environment are regulated by our bylaws.-everybody have 
to respect and fulfill the clauses content in ICANN bylaws.-If bylaws are 
representing  “the legal” into ICANN environment, not fulfill this rules means 
“not legal”. So, the fact commited after that,  is null, or at least could be 
reviewed.-Bylaws were made by all community for ICANN community, and it is not 
possible that “some parts”  in agreement ( through detour the decisions of the 
whole community), choose to change, against what bylaws are saying.  Now : I am 
asking formaly your position as ICANN General Councel, because: IMHO the 
sentence mentioned is absolutely clear, transparent, no need interpretation and 
shows what the bylaws want in relation on it. IMHO If  the NCA appointees were 
not assigned to each house (into GNSO), the situation would constitute a 
violation or at least a serious lack of commitment by NomCom. IMHO if GNSO 
after that (the previous situation) convalidate this (the no!
  assign by GNSO) and decide “by consensus” of two houses (CPH & NCPH), assign 
one of them on each, is also a violation of our bylaws, or at least act against 
it. IMHO If the situation occur. What happen with the resolutions taken by 
GNSO? Having in account that the quorum was obtained on this way (with some 
members bad designated in each houses, or designated against bylaws rules. IMHO 
consider that the situation is serious, because is happening right now (and is 
not new), affect seriously “the transparency”  (what is part of CORE) of ICANN. 
And IMHO is the same to say to all community: “don`t take in account bylaws 
rules, because somebody can change, in agreement with other,  if it is 
onvenient for they .”`  That is what I feel about this complicated situation, 
and my legal formation forced me to claim for a formal interpretation of this 
clause, in order to solve (IMO) the serious situation what is happening, and 
keep safe the concept of “transparency” into ICANN. Before t!
 o conclude, and give in advance my thanks for your prompt response, I 
want to say that in this event there are not involved my own interests. Im part 
of the ICANN community, Im part of the civil society into this, and Im 
currently acting by me, in my personal capacity, and in their representation. 
Lastly I Think would be good to get your definition and opinion in order to 
give advice and define this controversy.  Is my intention give publicity to 
this Thanks, in advance  All my respect.
Carlos Dionisio AguirreNCA GNSO Council - ICANN
former ALAC member by LACRALOAbogado - Especialista en Derecho de los 
Negocios[redacted]