Stéphane: Thank you for your prompt initiative and the supportive observations. Please see my embedded comments below. If there are any other questions, please continue to raise them. In the interest of time, we recognize and appreciate the Council’s active interest and remain committed to timely and thorough replies. Ken Bour From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Stéphane Van Gelder Sent: Friday, March 27, 2009 1:05 PM To: Margie Milam; council@gnso.icann.org; liaison6c@gnso.icann.org Subject: Re: [council] Draft Revisions to the ICANN Bylaws Relating to GNSO Restructure Margie, Thanks for sending these on. As we are so pushed for time, allow me to get the ball rolling on this discussion and make a few comments. Section 3. Article 1. Moving the “geographic regions goalposts” up from “no 2 members” to “no 3 members” seems like a sensible suggestion for those SGs with 6 Council members. I agree with it. [KAB: ] Staff appreciates your support of this provision. Section 3. Article 3. What’s your rationale for recommending that “vacancy rules” be moved to OR&Ps? [KAB: ] The only specific provision, in this section, deals with the removal of an NCA for cause and includes the actual voting thresholds. One of Staff’s sub-objectives in this re-drafting assignment was to eliminate any/all provisions that, in its judgment, could be more effectively accommodated within internal Council procedures. One area identified was detailed voting thresholds and another involved this topic of vacancies, removals, and resignations. Staff suggests that such provisions do not rise to the level of being required in ICANN-level legal Bylaws. In the event that new Council voting thresholds are added or modified, in the future, such changes could be accomplished locally versus requiring protracted formal Bylaws amendments. Similarly, procedures for handling Council vacancies, resignations, and other administrative matters seem more appropriate for OR&P vs. corporate Bylaws. Section 3. Article 7. Are there no voting thresholds for selecting the chair and vice-chairs? [KAB: ] Yes, there are bicameral house voting thresholds for these positions and, as discussed above, they will be prescribed in the Council’s OR&P currently under revision by the GNSO Operations Work Team (Ray Fassett, Chair) under the auspices of the Operations Steering Committee (OSC). The Council Chair election requires 60% of both houses and the Vice-Chair positions are prescribed in the following language, inserted below: “The GNSO Council shall also select two Vice Chairs, one elected from each of the two voting houses. If the Council Chair is elected from one of the houses, then the non-voting Council-Level Nominating Committee Appointee shall serve as one of the Vice Chairs in lieu of the Vice Chair from the house of the elected Chair. If the Chair is elected from one of the houses, that person shall retain his/her vote in that house.” Section 3. Article 8. I agree the voting threshold descriptions belong in the OR&Ps, but it would be helpful for our discussion of the bylaws to have a reminder of what they are. Can you provide a link to where they are please? [KAB: ] The voting thresholds originally prescribed by the Working Group on GNSO Council Restructuring (WG-GCR) contained both PDP and non-PDP elements. In this re-drafting exercise, Staff is recommending that they be parsed out as follows: the non-PDP voting thresholds will be contained in Council OR&P while the PDP thresholds will be included in Article XX–Transition until such time as the Policy Process Steering Committee (PPSC) and PDP Work Team (Jeff Neumann, Chair) have completed deliberations and are prepared to recommend a formal revision to Annex A of the Bylaws. Since the PDP thresholds are currently specified in Annex A, which is not being revised as part of this restructuring effort, Staff recommends that the new PDP thresholds should be included in Article XX vs. Council OR&P. Article XX is a “transition” document only and, once the PDP voting thresholds are successfully relocated from Annex A to the Council OR&P (Staff’s recommendation), Article XX can be removed from the Bylaws in its entirety (assuming all other transition matters are completed). Below are the voting thresholds recast into the two groupings: Non-PDP: a) Elect Council Chair: requires 60% of both houses. b) Remove NCA for Cause: requires 75% of both houses (excluding the NCA subject to removal); subject to Board approval. c) All other GNSO Council Business (default): requires majority of both houses. PDP: a) Create an Issues Report: requires more than 25% vote of both houses or majority of one house. b) Initiate a PDP within Scope: requires more than 33% vote of both houses or more than 66% vote of one house. c) Initiate a PDP not within Scope: requires a vote of more than 75% of one house and a majority of the other house (“Super Majority”). d) Approve a PDP without a Super Majority: requires a majority of both houses and further requires that one representative of at least 3 of the 4 Stakeholder Groups supports. e) Approve a PDP with a Super Majority: requires greater than 75% majority in one house and majority in the other house. Apart from the points raised above, I think this document is already very near completion. Having seen it, I must admit I feel a lot more confident that we can move ahead with sufficient speed to meet the deadlines set in your email for our review of these proposed bylaws. Congratulations on a well-written document. [KAB: ] Staff appreciates the compliment and the vote of confidence toward a successful June Council seating. Thank you! Stéphane Le 27/03/09 00:34, « Margie Milam » <Margie.Milam@icann.org> a écrit : Dear All, As discussed in today’s GNSO call, ICANN Staff has prepared Draft Bylaws Revisions (attached) that contain Staff recommendations for changes relating to the GNSO restructure. They are intended to serve as a starting point for the GNSO Council’s discussions. General Observations · These Bylaws were drafted to be consistent with Board recommendations as to structure and principles. · Staff also attempted to build in flexibility to accommodate changes in the future without requiring Bylaws amendments. For example, Staff recommends that some issues be moved from the Bylaws to GNSO Council Operating Rules and Procedures that would be approved by the Board. · Since the Board approved improvements did not provide specific details with respect to all topics, ICANN staff developed recommendations to address these gaps, which are contained in footnotes throughout the document. · The Draft Bylaws Revisions are subject to review by the ICANN Office of the General Counsel for legal form as well as consistency. · A few additional decisions will be needed to finalize these Bylaws, for example, Board approval of the unresolved open issue concerning Board seats 13 and 14, and further Council work on certain of the transition procedures (e.g. staggered terms, elections). Format of Revisions · To facilitate reviewing these changes, the Draft Bylaws is organized as a side-by-side comparison of the current language and the proposed language. · The yellow highlighted text refers to new or substantially revised language compared to the current Bylaws. · The footnotes include rationale statements where Staff thought an explanation might be helpful. Next Steps and Timing · The GNSO Council will need to decide how it would like to review the Draft Bylaws to develop its recommendations. · ICANN Staff will be working with the GNSO Operations Work Team in developing the GNSO Operating Rules and Procedures to incorporate those improvements that were omitted from the Bylaws in order to provide flexibility. · In order to seat the new Council by June, the Board would need to approve of the revisions by no later than its May 21st meeting. · A public comment period would need to take place before the May 21st meeting. · The Council would need to complete its review/analysis by the next GNSO council meeting on April 16th in order to accommodate the public comment period. · Due to this short time period, the GNSO Council is currently evaluating the most effective way to proceed. Finally, ICANN Staff is available to provide background and additional information on the Draft Bylaws Revisions if it would be helpful for your review. Regards, Margie Milam Senior Policy Counselor ICANN

Hello, I too am puzzled (actually, disturbed) by this proposal to hardwire a representative for each constituency into the Council irrespective of its actual level of support in the SG and related considerations. This is very much a live issue at the moment, there's still an open public comment period on how the SGs will be structured, and there has yet to be a structured and systematic dialogue among the relevant parties about the pros and cons of different approaches. For our part, NCUC has put forward a proposal for the NCSG that is supported by all but one person that would be much more effective and democratic, and discussions in Mexico City with board members led us to believe this matter would would be getting a reasoned hearing and open dialogue down the line. Hence I'm a bit puzzled how staff could be pre-judging the resolution at this point. We will consult with our constituency on this and other aspects of the proposal and circle back, but having already spelled out the problems with this model, it is fair to say that that we would be strongly opposed to going forward on this basis. Thanks, Bill On Fri, Mar 27, 2009 at 5:16 PM, Avri Doria <avri@psg.com> wrote:

hi,

A few question/comments on first reading.

-- X3.1

...

Each Stakeholder Group may select representatives according to its Charter procedures subject to the provision that each Board-recognized Constituency shall be allocated a minimum of one seat on the GNSO Council.

I question whether this is indeed in keeping with the intent of the Board mandated changes as I thought they intended to break the direct connection between constituencies and council seats.

X3.3

I think that this would possibly stifle an outside voice in one of the houses. I think that condition C should apply no matter what house a NCA happens to be in. If the aggrieved house cannot make its case to the entire council then perhaps its grievance is not as 'for cause' as they believe.

X3.6

I thought that this was still an open issue waiting board consideration. As I described in the original report, I still believe that this will lessen the legitimacy of the board member vis a vis the other members, as this person would not have been elected by an SO but only by part of an SO.

...

x3.8

...

and one voting member appointed by the ICANN Nominating Committee

this read as if the Nomcom is going to determine which NCA sits where. I would recommend removing removing the line from each of the paragraphs and inserting:

c. One of the council members appointed by the ICANN Nominating Committee will be serve as a voting member of each house

the way this is done would then be put in the Operating rules

x4.1

As mentioned above I think the last paragraph is not in keeping with the Board's intent to separate seating on the council from constituency existence. If we do this, I believe we have negated one of the main advantages to be gained from the separation of constituency from stakeholder group.

thanks

a.

-- *********************************************************** William J. Drake Senior Associate Centre for International Governance Graduate Institute for International and Development Studies Geneva, Switzerland william.drake@graduateinstitute.ch New book: Governing Global Electronic Networks, http://tinyurl.com/5mh9jj ***********************************************************