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RE: [council] Re: formal position requirement

  • To: carlosaguirre62@xxxxxxxxxxx, ajp@xxxxxxxxxxxx, Samantha.Eisner@xxxxxxxxx
  • Subject: RE: [council] Re: formal position requirement
  • From: "Tim Ruiz" <tim@xxxxxxxxxxx>
  • Date: Thu, 20 Oct 2011 06:44:26 -0700
  • Cc: john.jeffrey@xxxxxxxxx, council@xxxxxxxxxxxxxx
  • List-id: council@xxxxxxxxxxxxxx
  • Sender: owner-council@xxxxxxxxxxxxxx

NCA terms are two years. I see no requirement in the bylaws that House
assignments must be for the full term of an NCA. IMO, the NomCom should
review and reconfirm the assigments each year, and in fact, I believe
that is what was intended.


> -------- Original Message --------
> Subject: Re: [council] Re: formal position requirement
> From: "carlos dionisio aguirre " <carlosaguirre62@xxxxxxxxxxx>
> Date: Wed, October 19, 2011 8:16 pm
> To: St�©phane Van Gelder <stephane.vangelder@xxxxxxxxx>,       
> "john.jeffrey@xxxxxxxxx " <john.jeffrey@xxxxxxxxx>
> Cc: "ajp@xxxxxxxxxxxx " <ajp@xxxxxxxxxxxx>,       
> "Samantha.Eisner@xxxxxxxxx " <Samantha.Eisner@xxxxxxxxx>,       
> "robert.hoggarth@xxxxxxxxx " <robert.hoggarth@xxxxxxxxx>,       
> "liz.gasster@xxxxxxxxx " <liz.gasster@xxxxxxxxx>,       
> "daniel.halloran@ican
> Stephane,
> With all my respect, the advice given by JJ is perfect, having in account the 
> alternance of one and two NCAs each year. On the other hand, what happens  
> when NomCom only appoint one NCA GNSO Council? Where this member will be 
> assigned? Will be homeless during all period in GNSO? . Sorry but IMHO your 
> reading is wrong. I think there are not any other possible interpretation, of 
> course under my humble point of view. 
> Regards
> Enviado desde mi dispositivo inalámbrico BlackBerry®
> -----Original Message-----
> From: Stéphane Van Gelder <stephane.vangelder@xxxxxxxxx>
> Date: Thu, 20 Oct 2011 00:22:23 
> To: <john.jeffrey@xxxxxxxxx>
> Cc: <ajp@xxxxxxxxxxxx>; <Samantha.Eisner@xxxxxxxxx>; 
> <robert.hoggarth@xxxxxxxxx>; <liz.gasster@xxxxxxxxx>; 
> <daniel.halloran@xxxxxxxxx>; <council@xxxxxxxxxxxxxx>
> Subject: [council] Re: formal position requirement
> Thanks JJ, I am copying the Council on my response.
> From my reading of the bylaws, I see no mention of a requirement for 
> rotation. So in theory, an NCA could be constantly given the same assignment 
> by the NomCom. Is this read correct? If so, why are you suggesting rotation 
> systems in your last paragraph?
> Adam, please let us know what the NomCom plans to do and when. I'm sure you 
> understand that the GNSO is keen to get this matter resolved before we sit 
> the new Council, on the Wednesday of the Dakar meeting.
> Stéphane
> Le 19 oct. 2011 à 19:43, John Jeffrey a écrit :
> Resending - may have been an error in transmission.
> Begin forwarded message:
> From: John Jeffrey < <mailto:john.jeffrey@xxxxxxxxx> john.jeffrey@xxxxxxxxx 
> <mailto:john.jeffrey@xxxxxxxxx> >
> Subject: Fwd: formal position requirement
> Date: October 19, 2011 9:19:12 AM PDT
> To: Stéphane Van Gelder < <mailto:stephane.vangelder@xxxxxxxxx> 
> stephane.vangelder@xxxxxxxxx <mailto:stephane.vangelder@xxxxxxxxx> >, Adam 
> Peake < <mailto:ajp@xxxxxxxxxxxx> ajp@xxxxxxxxxxxx <mailto:ajp@xxxxxxxxxxxx> >
> Cc: Samantha Eisner < <mailto:Samantha.Eisner@xxxxxxxxx> 
> Samantha.Eisner@xxxxxxxxx <mailto:Samantha.Eisner@xxxxxxxxx> >, Robert 
> Hoggarth < <mailto:robert.hoggarth@xxxxxxxxx> robert.hoggarth@xxxxxxxxx 
> <mailto:robert.hoggarth@xxxxxxxxx> >, Liz Gasster < 
> <mailto:liz.gasster@xxxxxxxxx> liz.gasster@xxxxxxxxx 
> <mailto:liz.gasster@xxxxxxxxx> >, Daniel Halloran < 
> <mailto:daniel.halloran@xxxxxxxxx> daniel.halloran@xxxxxxxxx 
> <mailto:daniel.halloran@xxxxxxxxx> >
> Bcc: John Jeffrey < <mailto:john.jeffrey@xxxxxxxxx> john.jeffrey@xxxxxxxxx 
> <mailto:john.jeffrey@xxxxxxxxx> >
>  Normal 0 false false false EN-US JA X-NONE 
> 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
>  <mailto:JJ@xxxxxxxxx> JJ@xxxxxxxxx <mailto:JJ@xxxxxxxxx> 
> From:  <mailto:carlosaguirre62@xxxxxxxxxxx> carlosaguirre62@xxxxxxxxxxx 
> <mailto:carlosaguirre62@xxxxxxxxxxx> 
> To:  <mailto:john.jeffrey@xxxxxxxxx> john.jeffrey@xxxxxxxxx 
> <mailto:john.jeffrey@xxxxxxxxx> 
> Subject: formal position requirement
> Date: Mon, 10 Oct 2011 16:09:01 +0000
> Cordoba, October 10th 2011.
> Dear John Jeffrey
> ICANN 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:
> Section 3. GNSO COUNCIL
> 1. Subject to the provisions of Transition Article XX, Section 5 of these 
> Bylaws and as described in Section 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; and
> e. 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 wrong, 
> please)
> -Bylaws are mandatory into ICANN environment for all and everybody.
> -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 to 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 Aguirre
> NCA GNSO Council - ICANN
> former ALAC member by LACRALO
> Abogado - Especialista en Derecho de los Negocios
> [redacted]

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