My review agrees with the legal analysis provided by ICANN counsel. As an observer of the EU list, I take strong exception to the points of "elaboration," whomever they come from. The "spirit" of the agreements is obviously for the European at-large to determine among themselves. As part of the world watching, I'm far more reassured by debate and discussion that reflects public involvement than by smooth "progress." --Wendy Nick Ashton-Hart wrote:
Dear European colleagues:
I have had a reply back from the Office of the General Counsel in respect of the two questions you asked me to take to them.
With respect to the two questions:
1) Would Ms. Cretu's candidature be void because she didn't belong to an ALS in advance of the closing of the nominations period:
It is arguable that a candidate should be a member of an ALS at the time they are nominated, but the Bylaws and MoU do not require that to be the case. As a consequence this fact does not void her candidature.
2) Would the fact that Ms. Cretu has been announced to be a member of the same ALS which Annette Muehlberg is a principal of void her candidature?
Since Annette is the NomCom appointee, and the Bylaws and MoU govern only the diversity requirements of the two ALAC members to be chosen by the RALO, this fact does not void her candidature.
A bit of elaboration is however in order, in respect of two points:
1) As you all know, the diversity requirements for all the officers was an important matter for many ALSes. They are also important to ICANN as a whole, else there would not be a diversity element to the ICANN Bylaws in respect of ALAC members. As a consequence, it is strongly recommended that Ms. Cretu join an ALS which is different from any other ALAC member, or ALAC candidate in this election, as that would clearly enhance the diversity of the ALAC members if she were to be elected. It was clearly not the intent of the diversity provisions that one ALS should have two ALAC members as members; this would not be in keeping with the spirit of these provisions.
2) All RALOs are encouraged very strongly to follow not just the letter of their MoUs and Operating Principles or Bylaws, and the ICANN bylaws as well, but their spirit too. This would include ensuring that those they nominate for elections are, at the time of their being nominated, clearly in compliance with both the letter and the spirit of the relevant MoUs, Bylaws/Operating Principles, and the like. This helps ensure that all elections are conducted entirely without any possible irregularity, or perception of irregularity, which only enhances the validity of elections and helps to avoid any external doubts about the result or the transparency and governance exhibited by the At-Large community.
These points are provided not to point fingers at or criticise any person or organisation, but rather to encourage everyone to consult these documents carefully, to ensure that you understand them, so that problems like those we have just encountered can be avoided. No other region has had anything like as great a difficulty in choosing their initial officers as EURALO is having and has had so far. I strongly urge you all to ensure that henceforward no further problems arise - the ICANN world is watching, and I would hope everyone would want the wider world to look upon At-Large as a benchmark in how to work transparently and without irregularity or the need to consult external parties further in handling of their elections.
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-- Wendy Seltzer -- wendy@seltzer.org phone: +1.617.418.3456 / +44 (0)1865 287203 // cell: 07785 550361 Visiting Fellow, Oxford Internet Institute Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/