RE: [council] [Fwd: Proposed Bylaws Amendment]

["Marilyn Cade" <marilynscade@xxxxxxxxxxx>]

Dear Glen

As a councilor, I ask that this topic be added to the Council agenda, and
that we invite Chair of the Registrar to present the proposed amendment. 

Thanks, Marilyn

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of GNSO.SECRETARIAT@xxxxxxxxxxxxxx
Sent: Friday, August 18, 2006 10:50 AM
To: council@xxxxxxxxxxxxxx
Subject: [council] [Fwd: Proposed Bylaws Amendment]

[To: council[at]gnso.icann.org]
Dear Council Members,

Please see a posting the Chair of the Registrar constituency, Jonathon 
Nevett,  has requested be passed on to the Council regarding Proposed 
Bylaws Amendment.

The attached word document is in plain text below and the marked up text 
in the document has been put in square brackets []

Kind regards,

Glen de Saint Géry
GNSO Secretariat - ICANN
gnso.secretariat[at]gnso.icann.org
http://gnso.icann.org

........................................................................


One year ago today, the GNSO passed a resolution recommending that the
Board adopt the attached changes to the Bylaws.  The recommendations
were promptly forwarded to the Board for consideration.  The proposed
changes make it explicit that contracts that ?substantially affect the
operation of the Internet or third parties;? and contracts that have ?a
material impact on a third party member of the Internet Community? would
have to be published for public comment prior to execution by ICANN.
This does not include every contract that ICANN signs, rather a limited
subset of the universe.

Please recall that this request came in response to ICANN?s failure to
post the final .net registry agreement for public comment prior to its
execution.  When asked about this occurrence in Luxembourg, the General
Counsel stated that he had received advice from outside counsel that
there wasn?t a */requirement/* that ICANN post the agreement for comment
prior to its execution.  While many of us disagree with that
interpretation, we proposed the attached Bylaws amendment to make it
clear that such a requirement does, indeed, exist.

The following is an excerpt from the minutes from the 8/18/05 GNSO meeting:

** ?John Jeffrey** commented from a staff perspective it was understood
that the recommendation concerned issues that were raised in Luxembourg
and were being presently articulated. Marilyn Cade's proposed change to
the language was important and there was also some question regarding
whether the scope of the language on which contracts would be included
in such process was concise enough.  John Jeffrey went on to say that
clearly input from the Council was appreciated and that the Board should
consider the recommendation but passing on specific language would not
be appropriate at this early stage given that the Board would need to
consider the input, and any Bylaw change would require a public comment
period before it could be approved.?

http://gnso.icann.org/meetings/minutes-gnso-18aug05.shtml

Has the Board considered the recommendation in the past year?  What has
caused the delay?  Will the recommendation be sent for public comment?

I urge the GNSO and the Board to take action on this important issue.

Thanks.

Jon Nevett

Network Solutions

Attached word document: ICANN-bylaw change-ensure
ARTICLE III: TRANSPARENCY
Section 6. NOTICE AND COMMENT ON POLICY ACTIONS [AND CONTRACT APPROVALS]
1. With respect to any policies [or contracts] that are being considered 
by the Board for adoption [or approval] that substantially affect the 
operation of the Internet or third parties, including the imposition of 
any fees or charges, ICANN shall:
a. provide public notice on the Website explaining what policies or 
contracts are being considered for adoption or approval and why, at 
least twenty-one days (and if practical, earlier) prior to any action by 
the Board;
b. provide a reasonable opportunity for parties to comment on the 
adoption of the proposed policies [or approval of the proposed 
contracts,] to see the comments of others, and to reply to those 
comments, prior to any action by the Board; and
c. in those cases where the policy action [or contract] affects public 
policy concerns, to request the opinion of the Governmental Advisory 
Committee and take duly into account any advice timely presented by the 
Governmental Advisory Committee on its own initiative or at the Board's 
request.
[d. In those cases where the policy action or contract affects public 
policy concerns, notify the relevant Supporting Organization?s policy 
council and take into account any advice presented by said Council on 
its its own initiative or at the Board?s request.]
2. Where both practically feasible and consistent with the relevant 
policy development process, an in-person public forum shall also be held 
for discussion of any proposed policies as described in Section 6(1)(b) 
of this Article, prior to any final Board action.
3. After taking action on any policy [or contract] subject to this 
Section, the Board shall publish in the meeting minutes the reasons for 
any action taken, the vote of each Director voting on the action, and 
the separate statement of any Director desiring publication of such a 
statement.

ARTICLE XV: GENERAL PROVISIONS
Section 1. CONTRACTS
[Consistent with ICANN?s transparency principles in Article III, the 
Board must approve all of ICANN?s material contracts in advance of 
execution.]  The Board may authorize any Officer or Officers, agent or 
agents, to enter into any contract or execute or deliver any instrument 
in the name of and on behalf of ICANN, and such authority may be general 
or confined to specific instances. In the absence of a contrary Board 
authorization, contracts and instruments may only be executed by the 
following Officers: President, any Vice President, or the CFO. Unless 
authorized or ratified by the Board, no other Officer, agent, or 
employee shall have any power or authority to bind ICANN or to render it 
liable for any debts or obligations.  [Before ICANN enters into or 
approves a contract that may have a material impact on a third party 
member of the Internet community, such contract must be published for 
public comment in final form and in its entirety (only information 
constituting trade secrets may be excluded when necessary) for at least 
21 days before the Board can approve the contract for execution.]