RE: [council] NCA assignments

[carlos dionisio aguirre <carlosaguirre62@xxxxxxxxxxx>]

Aparently the designations are well, But NomCom didn`t have in consideration 
(or yes. In this case is needed a clarification why) about the rotation 
(mentioned in advice given by The ICANN General Councel) of the 3 NCA`s.
And, due the omission of last year, the fact is: There are one NCA (myself) who 
was during this year  "Homeless", and if the new NomCom assignment  be 
validated, my "position of homeless" will be for my second year term too (a big 
mistake, IMHO). Founded on that, I want to appeal this resolution.
If this new mistake (from my point of view) is not corrected, I have the 
desition to claim to ICANN Ombudsman. 
I can do other considerations but I reserve for future it if would be needed.
In the same sense, I want to clarify that my position is not against anyone in 
particular. I consider was commited a mistake again, and I claim for that.
Mi attitude will be remain till the ICANN General Councel and the ICANN 
Ombusman validate  the resolution made by NomCom, and show me my own mistake
With all my respect.

Regards

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: stephane.vangelder@xxxxxxxxx
Subject: [council] NCA assignments
Date: Sun, 23 Oct 2011 18:54:59 +0200
CC: ajp@xxxxxxxxxxxx
To: council@xxxxxxxxxxxxxx



Councillors,
Please see below the assignments that the NomCom has made following the 
correspondence received from ICANN General Counsel on this issue.
These assignments will therefore be enacted on Wednesday, when we sit the New 
Council, as planned.
My thanks to the NomCom for working so quickly to provide us with their 
assignments. 

Stéphane




Début du message réexpédié :De : Adam Peake <ajp@xxxxxxxxxxxx>
Objet : Rép : Fwd: formal position requirement
Date : 23 octobre 2011 18:47:48 HAEC
À : John Jeffrey <john.jeffrey@xxxxxxxxx>
Cc : Samantha Eisner <Samantha.Eisner@xxxxxxxxx>, Robert Hoggarth       
<robert.hoggarth@xxxxxxxxx>, Liz Gasster <liz.gasster@xxxxxxxxx>, Daniel 
Halloran <daniel.halloran@xxxxxxxxx>, Stéphane Van Gelder      
<stephane.vangelder@xxxxxxxxx>, Rob Hall <rob@xxxxxxxxxxxxx>, "Vanda UOL" 
<vanda@xxxxxxxxxx>, Olof Nordling <olof.nordling@xxxxxxxxx>, Joette Youkhanna 
<joette.youkhanna@xxxxxxxxx>

Dear John,

When we made our appointments we were not aware 
we should assign our GNSO selected nominees to 
the Non-Contracted House and Contracted House.

Since receiving your email, October 19th, the 
2011 NomCom reconvened, discussed the 
appointments and agreed on the following 
assignments:

Lanre Ajayi, GNSO Non-Contracted House
Thomas Rickert, GNSO Contracted House

1 year terms.

Regarding the issue of future rotation, as the 
2011 NomCom process is coming to a close, I will 
recommend to future NomComs that they discuss and 
make recommendations in due course.

If you have any questions, please do not hesitate to contact me.

Thank you.

Warm regards,

Adam

Adam Peake
Chair, ICANN Nominating Committee 2011
<http://nomcom.icann.org/>




At 10:43 AM -0700 10/19/11, John Jeffrey wrote:
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 
³one voting representative shall be assigned 
to each House . . . by the Nominating 
Committee.²  This Bylaws provision requires 
the NomCom to assign voting representatives 
among the GNSO¹s 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 NomCom¹s 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



I¹m 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:







³BYLAWS FOR INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERSŠ
ARTICLE VII: NOMINATING COMMITTEE Š
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.²



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  ³the legal² into 
ICANN environment, not fulfill this rules 
means ³not legal². 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 ³some 
parts²  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 ³by consensus² 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 ³the 
transparency²  (what is part of CORE) of 
ICANN. And IMHO is the same to say to all 
community: ³don`t take in account bylaws 
rules, because somebody can change, in 
agreement with other,  if it is onvenient for 
they .²`





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 ³transparency² 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]