Comments on July 31 bylaws amendments

["Metalitz, Steven" <met@xxxxxxx>]

The following comments are submitted in my individual capacity.  Page 
references are to the document at 
http://www.icann.org/en/general/proposed-gnso-council-bylaw-amendments-comparison-31jul09-en.pdf

1.      Page 5:  Re the staff recommendation in footnote 1:  Have any problems 
been identified with having the Board choose the academic member of the 
Nominating Committee?  This recommendation assumes that academic institutions 
will be fully represented in the non-commercial stakeholder group, even during 
the transition period.  This assumption is inconsistent with the Board's 
decision with regard to filling NCSG slots.  
2.      Page 9:  insert "Council" before the last word in the last paragraph 
("affected GNSO Council member").  
3.      Page 15:  new paragraph 11(f) seeks to solve a contract problem with a 
by-laws amendment.  If contracts now require a "two-thirds vote of the council" 
in certain circumstances, mapping that phrase onto the bicameral structure in 
the bylaws may not have any impact on contracting parties.  This paragraph 
should be dropped from the by-laws and contracts should be modified if needed, 
or alternatively some  other mechanism should be used to bind contracting 
parties.    
4.      Page 19:  under section 5(4) and 5(5), new constituencies can be 
recognized only within the stakeholder groups comprising the non-contracted 
parties house.  This results from the staff's decision to try to bring some 
coherency to the concept of "constituency" under the new structure by 
abolishing it in the contracted parties house.  As currently drafted, these 
sections allow new constituencies to be proposed and approved that consist 
significantly or predominantly of contracted parties, and mandates that such 
new constituencies be placed in the non-contracted parties house.   The fact 
that there is already pending at least one application for a new constituency 
that meets this description shows that this is not simply a hypothetical 
problem.  If the approach taken in these sections is followed, then a provision 
should be added that prevents the recognition of any new constituency that 
includes more than incidental membership by contracted parties.  
        5.      Pages 23-24:  This document is quite ambiguous about an issue 
that the Board has clearly settled:  how the three new seats for the 
non-commercial stakeholder group are to be filled.  It can be read to say that 
they are to be filled by the non-commercial users constituency (section 5(d), 
page 23), or as specified in the "Restructure Implementation Plan" of the GNSO 
council (section 6, page 24).  However, neither reading reflects reality: the 
Board has decided that it will fill these slots. That should be clearly stated 
in the transition article of the by-laws.  Furthermore, any change in this 
manner of filling these slots should be dependent upon a Board finding, after a 
transparent review, that the NCSG has developed to fulfill pre-established 
objective criteria for diversity and representativeness. 
        6.      Page 36, 41:  This draft introduces into the current PDP the 
concept of a "Successful GNSO Vote," which is defined by reference to section 
3(11) of Article X of the bylaws.  This new concept is ambiguous.  If it is 
meant to refer to an affirmative vote that meets the relevant voting thresholds 
set forth in the referenced bylaws provision, that should be clearly stated. 

Steven J. Metalitz | Mitchell Silberberg & Knupp LLP | 1818 N Street, N.W., 8th 
Floor, Washington, D.C. 20036 USA | tel: (+1) 202 355-7902| fax: (+1) 202 
355-7899| met@xxxxxxx
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