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

Wendy Seltzer wendy at seltzer.com
Thu May 10 06:30:40 EDT 2007

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."


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 at 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

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