[EURO-Discuss] Legal situation with respect to ALAC candidatures

[Nick Ashton-Hart]

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.

-- 
Regards,

Nick Ashton-Hart
Director, At-Large
ICANN
PO Box 32160
London N4 2XY
United Kingdom
Main Tel: +44 (20) 8800-1011]
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Fax: +44 (20) 7681-3135
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