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Re: [council] Question.

adding to Stéphane's e-mails, I gladly offer to you to schedule a phone call in 
the next days during which we can discuss this matter bilaterally. I will 
e-mail you on this separately in order not to swamp the list with e-mail.


Am 15.12.2011 um 17:18 schrieb Stéphane Van Gelder:

> Carlos,
> If you go back on the call transcript, you will see that I did not accept or 
> refuse anything. Thomas had sent his proxy. That fact was read out during 
> roll call. You did not object, nor did anyone else. 
> Not having all the rules in my head at any given time and not hearing any 
> objections, I did not anticipate a possible problem.
> As to what should be done now, as there were no objections on the call, and 
> no objections since the call until your questions yesterday whilst the call 
> was on November 17 so nearly a full month ago, I am of the mind that no 
> further action should be taken.
> I would also stress that on this specific issue, the whole Council's 
> attention was drawn to Thomas' proxy by a question from Wolf right after Glen 
> finished the roll call. The question was on a different matter, but it does 
> show that there was plenty of opportunity to voice concerns at the time. None 
> was heard.
> Moreover, had you voted in Mason's stead, whatever your vote it would have 
> made no difference to motion 1 and no difference to motion 2. Those were the 
> only two motions considered at the meeting (motion 3 was deferred).
> I would therefore recommend that we let sleeping dogs lie here, and 
> concentrate on today's meeting.
> Thanks,
> Stéphane
> Le 15 déc. 2011 à 14:16, carlos dionisio aguirre a écrit :
>> Stephane . Thanks for your prompt response, you are very smart and 
>> inteligent. But, I consider the issue is not so simple. And with all my 
>> respect I allow myself to say the following:
>> The point is not only "Thomas gave his proxy to Mason", the point is that 
>> was against the our established OR&P (on my humble point of view), and this 
>> is so serious, because on my point of view also, somebody must assume the 
>> lack of responsability to approve that conduct, thats the point to have in 
>> account.
>> When we have rules, nobody can do what they want. For that was my question:
>>  #1 why do you accept..... against the rules? Are you or any councilor or 
>> even the council, capable to change our rules, or give authorization to 
>> "jump" some rule? Who is responsible for this situation?
>> And this, generate another issue: if there are anybody in the call against 
>> what rules say. What happen with the resolution taken in the teleconference? 
>> are valids? this is another point to take in consideration, and I personaly 
>> consider is no a simple thing.
>> in response to the last paragraph of your answer, I agree with you. On this 
>> sense and without intention to disturb the call,  I made a comment to Wolf 
>> by private chat. Obviously, my idea is help to build a better GNSO.
>> 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 
>> Subject: Re: [council] Question.
>> From: stephane.vangelder@xxxxxxxxx
>> Date: Thu, 15 Dec 2011 12:15:39 +0100
>> CC: council@xxxxxxxxxxxxxx
>> To: carlosaguirre62@xxxxxxxxxxx
>> Carlos,
>> Thomas gave his proxy to Mason. Perhaps you should enquire with him as to 
>> why he did not give it to you, if you feel that was unfair.
>> On the second point, this is my read of the rules. The secretariat (Glen) 
>> should feel free to correct me if I am wrong. But to me, your read is wrong. 
>> There are 7 councillors (including the NCA) in the CPH. To me, a majority is 
>> more than half, so 4. If there is another read to the word majority, I do 
>> not see it defined in the rules. One thing seems certain to me however, and 
>> that is that majority does not mean the total number of available 
>> councillors, as you suggest. The rules also say there must be at least one 
>> councillor from each SG. At the very least I was on the call and so was Jeff 
>> Neuman. That's one from each SG in the CPH.
>> Finally, a more general point. When you have valid questions of this kind, I 
>> feel it would be more helpful to state them during the meeting, so that 
>> something can be done immediately. I would appreciate your support, and the 
>> support of anyone on the Council, in helping to make the meetings run both 
>> smoothly and according to our rules. And because one person can't do 
>> everything at once, it is helpful if you spot something that you feel is not 
>> within the parameters of those rules, to mention it as constructive 
>> criticism while the meeting is in flow. That way, if there really is a 
>> problem, it can be remedied at once.
>> Stéphane
>> Le 15 déc. 2011 à 00:17, carlos dionisio aguirre a écrit :
>> Stephane .
>> First of all I want to apologize by my ignorance if it the case. Second I 
>> ask, in order to learn more. I ask the question to whom I consider is the 
>> person capable to give me answers.
>> Going directly to the point, I have to say that I have a few doubts in 
>> relation with the past teleconference call quorum. My specific doubt is 
>> about, differents points:
>> 1- Why did you accept the proxy given by Thomas Rickert to Mason Cole, being 
>> Thomas a NCA, and having in account that our OR&P, the specific rule say:
>> 3.8 Absences and Vacancies
>> 3.8.4 Remedy: Temporary Alternate
>> a. For a Councilor who is not appointed by the Nominating Committee, the 
>> appointing
>> organization may, at its discretion, name a Temporary Alternate to serve in 
>> the absent
>> or vacant Councilor’s seat.
>> b. For a voting NCA, the Council non-voting NCA is immediately activated to 
>> serve as
>> a Temporary Alternate subject to provisions in Section 4.7-Temporary 
>> Alternate. The
>> communication required pursuant to Section 4.8-Procedures, Paragraph b, if 
>> it cannot
>> be submitted by the voting NCA, will be completed and forwarded by the 
>> non-Voting
>> NCA.
>> -----------------------
>> 2- I understand (correct me if Im wrong) The Quorum needed to session in 
>> case of CPH is 7 Councilors present, all of this according
>> Chapter 4.0: Voting
>> 4.1 Quorum
>> In order for the GNSO Council to initiate a vote, a quorum must be present. 
>> A quorum is a
>> majority of voting members in each House, which must include at least one 
>> member of each
>> Stakeholder Group.
>> In case of the past teleconference call I can see on the transcript record 
>> only 6 councilors present & the proxy y (given badly in my point of view) by 
>> Thomas to Mason,
>> List of attendees:
>> Contracted Parties House
>> Registrar Stakeholder Group: Stéphane van Gelder, Mason Cole, Yoav Keren
>> gTLD Registries Stakeholder Group: Jeff Neuman, Jonathan Robinson, Ching 
>> Chiao- – absent, apologies, proxy to Jeff Neuman
>> Nominating Committee Appointee (NCA): Thomas Rickert – absent, apologies 
>> proxy to Mason Cole
>>  Could you explain me what was the procedure to session?
>> ------------------------------------
>> 3 - In a hypothetical case that proxy was bad given (having in account the 
>> rules mentioned), what is the solution for votes in each motion debated on 
>> the call?
>> others clauses applicable in my point of view, for this case are:
>> Chapter 4.0: Voting
>> 4.1 Quorum
>> In order for the GNSO Council to initiate a vote, a quorum must be present. 
>> A quorum is a
>> majority of voting members in each House, which must include at least one 
>> member of each
>> Stakeholder Group........b. Quorum
>> An absent Council member does not count toward quorum even if a proxy has 
>> been
>> established. A Temporary Alternate (see Section 4.7-Temporary Alternate 
>> below) if
>> present, would count toward quorum. 
>> (4.6 Proxy Voting
>> An abstaining or absent Council member as defined above (the Proxy Giver) 
>> may transfer his or
>> her vote to any other Council member (the Proxy Holder).)  BUT
>> c. Proxy Notification
>> A proxy notification must be sent to the GNSO Secretariat and should 
>> indicate which
>> type it is. The notification should, where applicable, be sent by the Proxy 
>> Giver's
>> appointing organization. Ordinarily a proxy notification must be received by 
>> the
>> GNSO Secretariat before the start of the relevant meeting.
>> 1 The term “appointing organization” (see Section 1.3.1) does not comprise 
>> the Nominating Committee; therefore,
>> the Voting Direction remedy does not apply to House NCAs.
>> 1.3 Definitions
>> 1.3.1 An “appointing organization” is defined to be the Stakeholder Group or 
>> Constituency that
>> elected or appointed a representative to the GNSO Council1. Note that, for 
>> the purposes
>> of these procedures, the Nominating Committee is not considered an 
>> “appointing
>> organization.”
>> Im  asking you because I sent to Wolf a private chat during the 
>> teleconference, and Im still waiting your response (probably he may have not 
>> seen it).
>> At the end, I want give my thanks in advance for time and the explanation 
>> that you can give me. 
>> 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

Thomas Rickert, Rechtsanwalt
Schollmeyer &  Rickert Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm)
Geschäftsführer / CEO: Torsten Schollmeyer, Thomas Rickert
HRB 9262, AG Bonn

Büro / Office Bonn:
Kaiserplatz 7-9, 53113 Bonn, Germany
Phone: +49 (0)228 74 898 - 0

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Savignystraße 43, 60325 Frankfurt, Germany
Phone: +49 (0)69 714 021 - 56

Zentralfax: +49 (0)228 74 898 - 66

mailto: rickert@xxxxxxxxxxx
skype-id: trickert
web: www.anwaelte.de

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