Re: [ga] Retroactive Application of ICANN 2009 Bylaws on the GA

[Avri Doria <avri@xxxxxxx>]

Hi,


As I said previously, I sent a request to the ICANN Legal Counsel  
asking for clarification of the status of the GA List and of its  
relationship to the GNSO council.
I am not a lawyer. So instead of interpreting, I will wait for an  
official interpretation.
a.


On 27 Sep 2009, at 22:47, Hugh Dierker wrote:

> The ICANN BoD is specifically leaving the GA alone. Denise, Rod,  
> Chuck and Avri this remedial overview is for you.  The real kicker  
> is 2nd from the bottom.
> Generally speaking when something is amended, it is only changed as  
> to those matters particularly and articulately addressed.
> Generally speaking if something is titled the "amended" then that  
> new amended document is the whole document.  Clearly good "legal"  
> process demands the appropriate addressing of all matters to be  
> altered in any way. ie. resolutions, redlining, bluelining, notice,  
> etc.
> Here are the bylaws that established the continuation of the GA.
> http://www.icann.org/en/general/archive-bylaws/bylaws-28feb06.htm#XX
> This mandate has never, subsequently been altered.
>
> Here are the posted existing bylaws; 
> http://www.icann.org/en/general/bylaws.htm#X
> These do not address the pre-existing GA and mandates there about.
>
> Here are the proposed "amendments" to the ICANN bylaws.
> http://icann.org/en/announcements/announcement-03aug09-en.htm  Note  
> they are entitled: Proposed Bylaw Amendments Related to GNSO  
> Restructuring (Version 2)
> These proposed "amendments to" do not address the GA.
>
> Here is a dandy discussion on how certain matters apply and how  
> others do not:
> http://www.wwtld.org/meetings/cctld/20031026.CENTR-LR- 
> StephanWelzel.pdf
> Here is an excellent 1999 discussion of the at-large amendments to  
> the by-laws.
> http://faculty.law.wayne.edu/Weinberg/bylaws.htm
>
> It is clear that these new amendments specifically address the  
> conduct and process of the GNSO and attached Council. It is very  
> clear that the BoD and lawyers are aware of the GA and the council  
> resolutions regarding the GA.  Therefor it is perfectly clear that  
> the BoD in adopting these new bylaws is not changing the  
> requirements of maintaining the GA.  There has never been an open  
> forum or comment period on removing or abandoning the GA because it  
> has never been proposed until now, and only as threats or excuses  
> for lack of compliance. The finger is being pointed down by those  
> who have failed from above.
> (In case your wondering, yes I have a degree in linguistic  
> philosophy and am perfectly able to read the meaning of words and  
> interpret what they restrict and allow and command.. Cogito Ergo Sum.)