Re: [council] formal position requirement

[Stéphane Van Gelder <stephane.vangelder@xxxxxxxxx>]

JJ's advice includes comments on rotation that I cannot see in the bylaws…

Stéphane



Le 20 oct. 2011 à 03:16, carlos dionisio aguirre a écrit :

> 
> 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
> ICANN
> <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:
>  
>  
>  
> "BYLAWS FOR INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS.
> ARTICLE VII: NOMINATING COMMITTEE .
> 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]
>