[council] Motion re the report from the GNSO Bylaws Implementation Drafting Team

[Rubens Kuhl]

Paul,

Considering the many times that ICANN Legal was found during WS1 to have given biased advice, and I don't think it's a matter of complexity. 

That said, we should first ask ourselves whether to seek that legal advice or not, but if we do, I fail to see why we shouldn't follow the same MO as WS1. 


Rubens


> On Nov 4, 2016, at 10:19 AM, policy at paulmcgrady.com wrote:
> 
> I suppose the reason is that this isn't a difficult topic like trying to identify a jurisdiction that can host a sole designator model.  This just boils down to "can write in the word 'Council' where we wish it existed but doesn't, especially when writing it changes the substantive meaning of the Bylaws by shifting power from the members of the GNSO to the Council of the GNSO with its controversial voting structure.  Seems like a straightforward question to me, not needing expensive outside counsel.  If, however, ICANN Legal believes it is unqualified to answer the question, I suppose they could refer it out...
> 
> Best,
> Paul
> 
> 
> -------- Original Message --------
> Subject: Re: [council] Motion re the report from the GNSO Bylaws
> Implementation Drafting Team
> From: Rubens Kuhl <rubensk at nic.br <mailto:rubensk at nic.br>>
> Date: Thu, November 03, 2016 9:36 pm
> To: policy at paulmcgrady.com <mailto:policy at paulmcgrady.com>
> Cc: Amr Elsadr <aelsadr at egyptig.org <mailto:aelsadr at egyptig.org>>, WUKnoben
> <wolf-ulrich.knoben at t-online.de <mailto:wolf-ulrich.knoben at t-online.de>>, GNSO council
> <council at gnso.icann.org <mailto:council at gnso.icann.org>>, GNSO secretariat
> <gnso.secretariat at gnso.icann.org <mailto:gnso.secretariat at gnso.icann.org>>
> 
> 
>> On Nov 4, 2016, at 9:44 AM, <policy at paulmcgrady.com <mailto:policy at paulmcgrady.com>> <policy at paulmcgrady.com <mailto:policy at paulmcgrady.com>> wrote:
>> 
>> Hi Amr,
>> 
>> Thanks for your note. You say something very interesting, namely "If the Council believes that the DT did not act in accordance with the instructions it received in the motion that created it, then perhaps the CSG may have reason to request that the DT report and recommendations not be approved/adopted. That is not the case, however."  The point of the minority report is that it actually is the case that the DT did not follow the instructions.  Instead of coming back with recommendations based upon how the new Bylaws are actually written, much of the Report simply boils down to inserting the word "Council" before "GNSO" wherever that it suits the majority.  This, of course, is a novel reading and undoes quite a bit of Workstream 1 which was designed to ensure that all members of the Empowered Community are empowered, not just a lucky few.
>> 
>> 
>> Given the novel reading of the Bylaws required to approve the Report, what is the objection to seeking advice from ICANN Legal?  Is the majority is concerned that ICANN Legal will come back and make it clear that the novel reading is inappropriate?  If so, then it seems to me that it is extra important to have ICANN Legal look this over before we leap.  Can you please explain the hesitancy to have ICANN's lawyers look at this?
> 
> Paul, 
> 
> Is there a reason why the legal advice being suggested is only the ICANN staff one, while WS1 always had legal advice from both ICANN/Jones Day and Sidney/Adler ? 
> 
> 
> 
> Rubens
> 
> 

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