[council] Bylaws changes and the PDP was RE: Draft Revisions to the ICANN Bylaws Relating to GNSO Restructure

[Avri Doria]

Hi,

Having the lawyers, both ICANN's and those of the contracted parties
discuss this is probably a good idea.

>From a naive non legal perspective, I would expect that while the basic
steps that must be taken as well as the consultations, transparency and
voting thresholds, should be defined in by-laws, things like timing,
methods and possible additional steps (e.g. do we do a research project
and do we do it before or after constituting a WG) could be left to
operating rules or the council.

a.

On Sun, 2009-04-05 at 10:22 -0400, Gomes, Chuck wrote:
> I suggest that we do our own legal analysis like we did with the two
>  versions of the DAG to identify exactly what issues must stay in the
>  Bylaws and develop our rationale for that so that we can either demand
>  that those stay in the Bylaws or insist on mitigating language.  I am
>  sure that Jonathan Spencer will participate on our part.  Should we
>  arrange a conference call of RyC attorneys?  Jeff - do you want to do
>  that?
> 
> Chuck 
> 
> > -----Original Message-----
> > From: Neuman, Jeff [mailto:Jeff.Neuman at neustar.us] 
> > Sent: Sunday, April 05, 2009 9:13 AM
> > To: avri at acm.org; council at gnso.icann.org; policy-staff at icann.org
> > Cc: liaison6c at gnso.icann.org; Gomes, Chuck
> > Subject: RE: [liaison6c] Re: [council] Draft Revisions to the 
> > ICANN Bylaws Relating to GNSO Restructure
> > 
> > All,
> > 
> > My biggest issues, which I have explained to staff and my 
> > constituency surrounds taking elements out of the Bylaws and 
> > putting them into an Operating Rules document as has been 
> > implied by many councilors as well as by staff.  I understand 
> > the view that it MAY provide for some flexibility, but taking 
> > any elements of the PDP out of the bylaws has implications on 
> > the contracted parties which MUST be fully considered by the 
> > legal staffs on the registries/registrars and ICANN prior to 
> > taking any such actions since our agreements refer to the 
> > Bylaws for the policy process.
> > 
> > Perhaps more importantly, by taking elements out of the 
> > Bylaws, you are essentially removing those elements from the 
> > Independent Review Process.  The IRP is only for cases in 
> > which the Bylaws are violated.  If the elements are not in 
> > the Bylaws, there is no review and hence NO ACCOUNTABILITY.  
> > As we have seen in the XXX IRP, the ICANN staff considers the 
> > IRP to be extremely narrow  (Too narrow in my opinion).  
> > Nonetheless, I for one do not want to take things out of the 
> > Bylaws without a commitment hardcoded in writing that 
> > removing them from the Bylaws would not remove them from the 
> > IRP in cases of any violations by the ICANN.
> > 
> > I cannot post to the Council list, but believe these points 
> > should be made clear to all of the Council members.
> > 
> > Jeffrey J. Neuman, Esq.: NeuStar, Inc.
> > Vice President, Law & Policy 
> > 
> > 
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