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@neustar.us] Sent: Sunday, April 05, 2009 9:13 AM To: avri@acm.org; council@gnso.icann.org; policy-staff@icann.org Cc: liaison6c@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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