[council] Re: formal position requirement

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

Thanks John.

Stéphane



Le 23 oct. 2011 à 20:18, John Jeffrey a écrit :

> 
> Stephane - 
> 
> The rotation I mentioned earlier referred to cycle of NomCom appointments.  
> There is no requirement for rotation of the NomCom appointees among the three 
> seats.  To follow the Bylaws, I recommend that its preferable for the 
> NomCom's appointments to be considered for the specific roles on the Council 
> (Contracted House NCA, Non-Contracted House NCA and Non-Voting NCA).  
> 
> The NomCom cycle of appointments to the GNSO Council is 2 in odd years and 1 
> in even years.  Given that each time an appointment is made, there is the 
> potential for a new person to be appointed to the seat, my suggestion below 
> was to encourage the GNSO and the NomCom to consider if it is preferable to 
> have both voting NCAs appointed at the same time, with the Non-voting NCA 
> appointed in the following year, or if the GNSO would be better served by 
> having one voting NCA and the Non-voting NCA appointed in the same year, with 
> the other voting NCA appointed in the next year.    
> 
> I hope this clarifies my statement for you.  Please let me know if you have 
> additional question.
> 
> 
> John Jeffrey
> General Counsel & Secretary
> ICANN
> 4676 Admiralty Way, Suite 330
> Marina del Rey, CA USA 90292
> direct dial - +1.310.301.5834
> mobile - +1.310.404.6001
> JJ@xxxxxxxxx
> 
> On Oct 20, 2011, at 12:22 AM, Stéphane Van Gelder wrote:
> 
>> 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 <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 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]
>>>>> 
>>>> 
>> 
>