.pre
The draft below contains the comments which were sent by after the Berlin Meeting until September 29.
After September 29 comments became more complicated as they referred to different versions of the draft.
The letters left of the comments indicate its author:
C Christoph
N Nick
R Roberto
Text in red: Language suggested by Nick in his mail of Sept. 29
Draft EURALO Bylaws
On the basis of the draft send out by Annette Muehlberg 16th of September 2006
Working paper including changes made at the Berlin preparatory meeting the 17th September 2006
All lines marked with ►need further work and proposals.
Articles of Association
Part A
§ 1 Name, domicile, financial year, language
(1) The Association bears the name “European Internet User Forum” (hereinafter referred to as the "Association”) and shall be inscribed at the Register of Association. After inscription the Association bears the addendum “e.V.”.
N “e.V.” assumes that the registration/incorporation is done in Germany. The suffix will depend on the country.
► Name: "European Internet Users Forum e.V." in connection with a subtitle giving more specific information, subtitle should be something like: "Regional At-Large Organisation of ICANN" or "ICANN RALO" or "consumer rights and civil liberties in information society"
(2) The Association shall be domiciled in _____________.
► Discussion: Incorporate in a country that is in the centre of Europe, where it is easy to incorporate the Association, where persons are available to do the job with the administration.
R A point was made about the Netherlands, where it is possible to register a company with bylaws in English. I believe this to be another desireable feature. Of course, we might end up in needing to find a solution that balances desireable features, in absence of a perfect solution, but in this phase we need to list all the criteria.
(3) The financial year runs from 01.07. to 30.06.
(4) The Working language within the Association is English.
(5) Official communications between members and the Association in general will be conducted via electronic-mail
P As Roberto has suggested, let us delete "e.V" for now has this presupposes incorporating in Germany. At this drafting stage, the bylaws should be as country neutral as possible.If there are additional requirements to cope with local law requirements, this should be discussed at a later stage, when we have selected a place of incorporation.
Regarding the name of the association, I still consider it to be too broad and gener(ic|al). But since there seems to be a majority in favour of it, I will surrender on that point.I still think that the subtitle should make a clear reference to the only reason why this association should exist, ie become a RALO. I support "Regional At-Large Organisation of ICANN".
V Actually, even while being the person who invented the "internet users forum" name, I support this subtitle as well. We are clearly at risk of hurting strong sensitivities in both directions - both if we make EURALO too much ICANN-focused or not enough ICANN-focused - so I am in favour of any reasonable compromise that can keep everyone sufficiently happynbsp
P Agree with Nick that having to translate the bylaws would be an issue. I am not thinking in terms of cost, but rather in terms of possible misunderstandings and disputes in the future, however good the translation can be. I doubt any court or administration would accept a sentence in the bylaws saying that the original English version would prevail over local language in case there is a difference of interpretation.
Article 1.3: The financial year shall run from 01.07. to 30.06
I suggest: "The financial year shall run from 1st January to 31st December. As a derogation to this rule, the first fiscal year shall run from XX to 31st December". (XX being the date when the bylaws are signed)
Rationale: It will make the accounting tasks much easier. In most countries tax documents, legal registration of annual accounts, etc usually have to be done during the first semester of the next year.
In most legal documents I have seen, months are written in full text and not as numerals. But I agree it may be purely cosmetic.
Part B:
§ 2 Definitions
In these Articles of Association the following abbreviations shall be understood as follows:
(1) ALAC means the – At-Large Advisory Committee according to the ICANN bylaws, attached to this document as Annex A;
(2) ALS means – an At-Large Structure according to the ICANN bylaws, attached to this document as Annex A;
R What do we mean with "valid ICANN Bylaws"?
C "Valid" was inserted to explain that our bylaws refer to the version of the ICANN bylaws which are in force now. "Valid" can be stricken out as lawyers will always refer to the ICANN bylaws in force at the time our bylaws are signed.
(3) Europe – The countries and territories as listed in Annex B.
► Problem: we need a fixed and variable definition of region. Maybe in the Membership section: from time to time (procedure with members defined in MOU: change of region must be dealt with in the MOU - how to deal with members of the respective region (could be structured like the ICANN bylaws for ALSes
► (1) ICANN means the – Internet Corporation for Assigned Names and Numbers whose head office is based in Marina Del Ray, California, U.S.A.;
► (2) RALO means a – Regional At-Large Organizations the ICANN bylaws, attached to this document as Annex A;
► (3) Member means a – member of the Association.
► (4) The Association means the - {European Internet User Forum]
Part C:
§ 3 Purpose of the Association
(1) The purpose of the Association is to give a voice in the governance of the Internet to the individual Internet users based in Europe, especially with regard to strengthening consumer protection, the realisation of human rights and civil liberties and to strengthening participation rights in Internet policy decision making.
P Alternative wording for article 3.1
3.1 The purpose of The Association is to give a voice in the policies for allocating Internet names and numbers to the individual Internet users based in Europe, keeping in mind their implication on consumer protection, human rights and civil liberties and to strengthen participation rights in internet policy decision making.
Rationale: We joked and complained numerous times before that many people, including the press, think of ICANN as a general Internet policy body and we seem to make the same mistake here. It should be clear that ICANN is narrowly focused on names and numbers (and protocol numbering btw). Although telecom regulatory frameworks, censorship, etc are all important issues, they are outside the framework of ICANN and hence of ALAC and RALOs.
R Referring to Patrick?
Strongly agree.
We need to limit the focus on ICANN's responsibility, while at the same time bring in the picture the elements that are specific of the Internet users, including consumer protection, human rights and civil liberties.
(2) The Association intends to be the RALO for Europe according to the ICANN bylaws.
(3) The purposes of the Association shall especially be achieved by:
C "especially" should not be stricken out, as it indicates, that the list of activities below is not final.
a) Organising events and activities to promote user participation and bottom up approaches in ICANN and Internet governance processes;
b) Promoting dialogue concerning the human rights and public policy aspects of Internet governance
c) Releasing statements about policies and participatory structures concerning the Internet, especially to ICANN;
R I think it is worthed mentioning that these statements are based on input from the membership. It has to be remembered that the whole schmilblick has been created by ICANN to convey user input into the policy making process, and therefore the ICANN Board would be extremely careful in making sure that the regional organization it will co-sign a MoU will act accordingly. In other words, to have yet another body that releases statements in name of the users without user input is not worthed the line in the budget.
R Another related issue is that the advice on policy interesting the at large community is given by ALAC, not the individual RALOs. So, while it is completely fair for EURALO to release statements, it should be mentioned that one of the purposes of the organization (and not a small one!) is to contribute to the ALAC position on policy. This goes beyond the election of two ALAC representatives, into the field of mechanisms of conveying regional community input to contribute to the global policy.
d) Designating European members to ALAC as defined by the MOU;
R I assume that this means the MoU between EURALO and ICANN, but is not defined yet. Also, I assume that lawyers would object with the definition of something in the bylaws that is consequence of another document that does not exist yet. But maybe that's why we pay lawyers, to solve these matters that are more of formal and legal nature.
R Actually, on second thought, we might drop the reference to MOU altogether and simply say: Designating European members to ALAC
(4) The Association shall at all time act in an open, accountable and transparent manner and is committed to cultural and geographic diversity and gender balance in its work internally and externally.
(5) The Association shall pursue activities which are exclusively and directly for public benefit. It shall not act in any way which is primarily of economic benefit to itself, its officers or Members.
R Are we sure we really mean "the public"? Should we not qualify better, like for instance "Internet users"?
C This is a standard phrase which is necessary to become tax exempt in Germany. If the Association is to be tax exempt a clause which is compatible to the jurisdiction here will incorporate is needed somewhere in the bylaws.
(6) The Association works selflessly and does not act on its own behalf. It does not pursue goals primarily serving on its own economic interest.
R I assume that this has some meaning for the lawyers? Not for me. But in any case I would drop the "primarily".
C Again, this phrase corresponds with German law. If we incorporate in Germany, we should not touch it. It does not oblige us to anything.
► ------ New part -----nbsp?
► (1) The Association’s funds may only be used for the purposes set out in the Articles of Association. Members shall not receive any of the Association’s funds simply by virtue of their membership. No one may be favoured with expenditures that are alien to the purpose of the Association or with disproportionately high payments.
► clarify reimbursement and wages for secretariat
R A "secretariat" is mentioned. I think that we should have some online discussion on how we see the secretariat. Is it employees of the organization, or do we depend on ICANN staff seconded to us? In the former case, we can exerce tighter control on the secretariat, but we need to have autonomous funding (it is an easy guess that ICANN will not give us money to pay an independent secretariat staff), while in the second case we will have a free lunch (for those who believe in free lunches).
► Unless otherwise determined by the General Assembly, All officiates officers of The Association are working honoraryshall not be provided with a salary or otherwise recompensed for their work on behalf of the Association , except as provided in (section dealing with Secretariat).
► (2) Unless otherwise determined by the General Assembly, all officiates officers of the Association are working honorary. shall not be provided with a salary or otherwise recompensed for their work on behalf of the Association , except as provided in (section dealing with Secretariat) Any decision regarding alterations of these Articles of Associations should be submitted to the relevant competent financial authority before it is announced the Register of Association.
last four paragraphs are standard clauses regarding the charitable character of the Association. charitable character should be discussed with the financial authorities before inscription in the registry
Part D:
§ 4 Relations with ICANN
(1) The Association intends to be the RALO for Europe according to the ICANN bylaws.
R This is a repetition of Article 3 (2).
(2) The Association and ICANN shall negotiate and sign a Memorandum of Understanding (MOU) concerning their rights mutual and obligations.
(3) The Board is authorized to conclude the necessary and appropriate appointments agreements with ICANN as may be required from time to time.
C I do not understand the exchange of "agreements" for "appointments" as a simple correction of expression. This has to clarified.
R I have already mentioned that I am not at ease with references to the MoU, even if this sentence does not assume contents in the MoU. But also in this case, if it is OK for the lawyers, it's OK for me as well.
But what are the "necessary and appropriate appointments"? Does it mean that the Board (I assume we speak of the EURALO Board) has the power to sign the MoU? Or does it mean that the Board is authorized to enter in negotiation with ICANN for the MoU? Or does it mean that the Board will deal with the relationship with ICANN? (incidentally, this latter option will never fly, because although the MoU is signed with the 5 RALOs, the working relationship of ICANN is with ALAC, not with the RALOs, as per ICANN Bylaws).
N Referring to Roberto
On point (2), I think "appointments" is meant to be "arrangements".
I've incorporated this change in redline in a version of the previous, English-proofed version of the document. Once I've incorporated these thoughts I will email another version around, on the principle that we should get all thoughts incorporated in a single draft.
Part E:
§ 5 Acquisition of membership
(1) Members of the Association can be individual persons as well as corporations and organizations supporting the purposes of the Association in their own activity. Members of the Association can be especially ALS within the geographic region of the Association.
R In many places in the article, and in the following ones, we use "corporations and organizations". Maybe this was explained in Berlin, but I have missed it. Why cannot we just say "organizations", but we need to add "corporations", which, in my reading, are just a subset of "organizations"?
► Members of the Association consist of the following:
a) natural persons domiciled in Europe supporting the purposes of the Association, and;
b) organisations domiciled in Europe supporting the purposes of the Association which qualify as an ALS, and;
c) legal persons with domicile in Europe supporting the purposes of the Association which do not qualify as an ALS.
R I understand that this is an useful addition to the richness of the EURALO, as it would provide added diversity of opinion and point of view, and I also understand that these particular bodies would not have voting rights. However, I would appreciate if somebody could give me an example of this type of potential members.
(2) Membership shall be by application, in writing, in the form and containing the information which the Board shall from time to time determine, and shall be signed. The application shall include the name and the address of the applicant as well as a valid e-mail address.
(3) The board shall decide on whether to approve an application.
(4) Members of other RALOs may not be members of the Association.
(5) Membership becomes effective upon receipt in full of the then-prevailing membership fees except where an applicant is explicitly exempted from paying membership fees.
C Again, the language change above - inserted by Nick - is not a simple correction of expression. We need to decide on that.
R "The board shall decide on whether to approve an application."
While this seems to be a no-brainer on the surface (everybody agrees in principle that the Board should have the right to refuse membership), this sentence can create a problem for ICANN, as one of the principles is inclusiveness. Just to make an example, suppose that an organization qualifies as ALS, and is located in Europe. On what basis can the Board exclude it from membership, if the very same organization would have been accepted in this initial phase?
My recommendation is that the ALS certification process would continue in ALAC, and if an ALS is ALAC-certified, it is accepted automatically as member of the RALO. Otherwise we would give to the EURALO Board a discretionary power that could be considered "inconstitutional" by ICANN (i.e., in conflict with ICANN principles).
N Strictly speaking I am virtually certain that it will be legally required in any jurisdiction for the Board to control who may become a member at the level of bylaws. Of course, an MOU or other agreement can provide that the board has agreed for an automatic process to grant membership in certain cases - or that they would be removed in other cases, but this would be something that the board could then revoke. I suspect few if any jurisdictions would allow a not-for-profit organisation to be registered which could not control who was a member.
Part F:
§ 6 Termination of membership
(1) Membership shall be terminated upon
a) Death (in the case of an individual member) or abolition (in the case of a corporate member and organizations)
R Again the "corporate member and organizations". As I said before, there are several of these, even in slightly different wording.
b) expulsion (in regard to sentence... third paragraph below)
c) Deletion (in regard to sentence... second paragraph below) or
d) Voluntary leaving the Association.
R What does it mean exactly? Are the obligations of a member just the payment of the membership fees?
Anyway, this is really the lawyers' domain. I assume that termination of membership for failure to pay fees in absence of even a remainder will never fly in a court, and therefore I assume that our lawyer will change this language.
N Referring to Roberto:
both of these are now fixed (the second was taken care of in the redlined version already, and I just fixed the first - you have a good eye!)
(2) Leaving the Association occurs by written notification to the board.
(3) A member may be removed from the member’s list by decision of the board, if a member is in arrears with its membership fees more than six months regardless of a reminder via e-mail. The member must be notified of his, her, or its removal. The obligation for the payment of the membership fees in arrears remains unaffected thereof by removal for non-payment.
C According to my understanding the obligation to pay the due membership fee shall not be altered by any cause that lead to a removal from the membership list.
(4) Membership may be terminated for any act which is contrary to the purposes of the Association if the Board so decides.
► The exclusion can always audited by a court!
Part G:
§ 7 Funding / Membership fees
(1) The Association shall require payment of an annual membership fee from the members. If the General Assembly so decides, additional fees may be required of members (an “Extraordinary Charge”) for extraordinary needs or in order to resolve a shortfall in the funds of the Association
(2) The annual membership fee and the payment date as well as any Extraordinary Charge shall be determined by the General Assembly.
(3) Honorary members and members of the advisory council are exempted from paying any fees and allocations.
► Clarify if mentioning of honorary members is needed to establish this position (different part)
(4) The board can waive or defer membership fees and Extraordinary Charges, all or part, in suitable cases.
§ 8 Rights and duties of members
(1) Members are obliged to maintain an e-mail address and to communicate the e-mail address to the Association.
(2) All members are entitled to attend any meeting or event organised by the Association.
C What is to be accomplished by inserting "meeting"?
(3) The Association will inform its members about its activities and programmes, especially via its Internet page and its mailing lists.
(4) Every member is obliged to inform the Association without delay any changes of its particulars.
(5) The Association is not responsible for damages resulting from undelivered communications due to missing or incorrect particulars of Members which have not communicated changes as required in Section 8.4.
(6) An individual person who is member of the Association in that capacity can also represent a member organisation when that member so appoints the individual and may then exercise the full membership rights of both.
R I don't think that the representative of an organization can be said to have "full membership rights" for the organization. I believe that the rights remain with the member (organization) but that the individual can exerce some of them by virtue of a delegation. As an example, Vittorio Bertola is exercing rights of ISOC Italy in the RALO because he has been delegated to do so by the organization. The rights remain with ISOC Italy, who is completely free to revoke the delegation to Vittorio, and appoint somebody else as its representative. Vittorio will cease to have the ability to exerce membership rights of ISOC Italy by virtue of a decision of ISOC Italy's Board, not EURALO's Board.
Anyway, I think that we all agree on the concept, we only need to find appropriate language.
§ 9 Bodies of the Association
The Bodies of the Association are the Board, the General Assembly ("GA") and if constituted Advisory Council.
R "Eventually"? A better word would be "possibly", as "eventually" means, if I am not mistaken, that something will happen sooner or later.
Anyway, I thought we agreed that we specify all the possible options, and if one of them does not materialize, it has no implication. So we should drop the "eventually".
§ 10 Board
(1) The Board of the Association shall consist of at least three members. Additional members can be decided by the GA. The GA elects at least one chair person and a treasurer. The board shall establish rules of procedure, which shall be generally available and are subject to the review of the GA.
R Why do we say that the GA elects "at least one chair person and a trasurer" when in reality it has to elect all members of the board? Is the treasurer assumed to be a member of the Board? I assume that "at least one chair person" does not mean that it can elect two chairpersons, but at least one person, that will be the chairperson. Also, in all boards that I know the elected board elects the chairperson among its members. Is this also the case here? It is not clear, it seems that the GA nominates the chairperson.
R What does it mean that the GA reviews the rules of procedure? Does it have to approve them? If not, does it propose changes?
(2) Unless the board or the General Assembly shall determine otherwise, any two board members jointly may act on behalf of the Association.
C Language change that affects meaning
R What does it mean? That if some organization asks for a representative of EURALO we have to send two board members? Can it be any two board members, regardless whether the chair person is included or not? If the GA decides to have a boart of 55 people, as is in its power to do, according to (1), is the Association still represented by two board members? Does this mean that they can speak for the Association? Does it mean that they can take resposibility for financial actions?
Anyway, I don't necessarily imply that all this has to be specified in writing, but I do imply that we should have a common understanding on where we are going, just to avoid problems in the future.
R General comment concerning al of § 10
As discussed in previous messages, I think that the Board composition will not fly with ICANN if it does not have at least a geographical distribution provision.
V This is my impression as well, and I also think that EURALO would not fly in general; there are many important parts of Europe that are not here yet (I remember Wolfgang Kleinwaechter talking about "the Champions League without champions") and I doubt that they would join if they thought it too difficult to make their voice heard among a big group of existing members.
R The minimum would be not to have more individuals from the same country (also, we need to choose a criterion, nationality or residency), but the problem is also wider representation from different geopolitical areas of Europe.
This might possibly be something to be trimmed out after an initial setup with a bare minimum distribution. I would be inclined to check the matter with the ICANN Board, to see what are the criteria to consider an (initial) set of rules acceptable. To be honest, a reasonable starting set could be geographically the one per country limitation, and a quota for gender.
V Again, I also stress that the biggest the Board is, the more diversity you can have. Apart from all the good reasons you state above, a bigger Board would allow more people to feel "included" and represented, and thus build positive enfranchisement to the process.
Now, I wanted to reiterate some slightly academical discussion (but based on experience) on how diversity is usually accommodated.
First of all, you have three possible mechanisms:
Mechanism 0: No diversity.
Mechanism 1: Soft diversity. You divide the area in sub-regions (or, the constituency in sub-groups - you could apply this to any type of diversity) and then you set a minimum and a maximum number of Board members from that region. This system works well with nomination processes, where Board members are selected; it is a bit more difficult with elections, because you will have to pick less voted candidates only because they are "the first in their region", and leave out more voted candidates because there already is a sufficient number of members from their region above them in the election results. This is the system used for the ICANN Board by the ICANN NomCom, for example.
Mechanism 2: Hard diversity. You divide the area in sub-regions, and then you assign a fixed number of Board members to each sub-region. Each sub-region then holds a separate (s)election. This method works well with elections, but might also end up parting participation rather than building common views. This is the system used for the ALAC, where each ICANN Region has three members (fixed).
Then, you have to intersect the mechanism with your definition of "sub-regions". You could go as small as to the country level, but then either you have a 40-members Board, or you can only use soft diversity with minimum 0 and maximum 1 member per country. Or you can use bigger regions, and in this case, for example, you could have four very big sub-regions (Northern, Central, Southern and Eastern Europe), or 8-12 smaller regions grouped by language and culture (France, Benelux, Spain+Portugal, UK+Ireland, Scandinavia etc).
My initial thought is that we either go for a small Board (5-7 people), big regions and soft diversity (1-2 or 1-3 per subregion), possibly with a "no more than one per country" clause to ensure diversity inside each big region, or we go for a bigger Board (8-12 people), smaller regions and hard diversity with one person per region.
R Also, the number of 3 seems low, considering what would be the powers of the board, and the voting mechanisms. It seems to me that the bylaws are set up in a way that the Board in reality runs the organization. Considering the volounteer nature of the work of all of us, would it be too much of a burden for each board member to work in a board of 3 people?
N Roberto:
These are indeed great questions.
In truth these sections about the bodies of the organisations could I suggest be much improved by some "industry standard" language governing how these types of structures should operate; the current provisions are perhaps too brief.
I will submit some suggestions on these for you all to look over.
§ 11 Competencies of the Board
(1) The Board is responsible for all matters of the Association, as far as they are not assigned to other bodies of the Association, including without limitation:
(a) Preparation of and convening of the General Assembly as well as compilation of the draft agenda;
C Language change - change in meaning?
(b) Implementation of the decisions of the General Assembly;
(c) Compilation of the budget for the financial year; keeping and preparinbg the accounts of the Association; compilation of a summary of the work of the Association;
(d) Deciding on the acceptance of new members;
R Something must be straightened up here. Does this mean that the board can refuse membership to an organization that has applied for it, and has been certified by ALAC to be an ALS? I don't think so.
I think that we need to make the distinction between the certified ALSes, that are accepted "de jure", and only need to communicate who their official representative is, and the individuals and legal persons that have a different approval/acceptance path.
Moreover, are we sure that we want to give to the board the burden of issuing a resolution for each and every individual member joining the EURALO? How many individual members are we expecting? 10, 100, 1000, more? If it is less than 100, I would wonder whether it would make sense at all to establish this mechanism. But if they are on the 1000s, that means quite an admin work to have their approval via a board resolution.
I wonder whether the admission of individual members should not be only a secretarial/administrative function: proof of existence, proof of citizenship/residency in Europe (see my previous comments on this), registration of admin data (email, etc.), proof of payment (if applicable). Does this need to be done by the Board? Or is there any added value that the board can bring?
N Your point is well taken vis a vis ALSes (see my previous comment on this point).
The comment about individual members literally true, in that the board would need to be the approver of members - however, the board wouldn't be prevented from delegating this power to a person or persons and giving them the criteria upon which to make the decision.
V Actually, I think this is a typical clause that NGOs put in their Bylaws, so to allow them to reject specific (troublemaking) individuals if they show up; however, it might better be said that individual applications are automatically accepted after, say, 30 days, unless the Board specifically votes against. Also, having a 30 day "cooldown" period before membership becomes active is often useful to prevent the typical pre-election rush of new subscriptionsnbsp
(e) Resolution about the removal or expulsion of members;
(f) Hiring and dismissing of employees in a secretariat - except where they are employed by a third party.
(2) In any matters of special importance to the Assembly, the Board shall ask the advisory council, when constituted, for a statement.
C Shouldn't it mean "Association" instead of "assembly"?
§ 12 Election and period of office of the board
(1) The members of the Board shall be elected by the General Assembly for a period of up to two years, such term beginning with the date of election.
(2) The board remains in its position until successors are elected.
(3) Members of the board must be members of the Association or representatives of member organisations of the Association.
(4) Where the membership in the Association of a member of the Board ends, that board member's seat shall be vacated.
(2) Where a member of the board relinquishes his seat or becomes ineligible to continue occupying his or her seat for any reason the Board shall elect a successor for the remainder of the term.
R I strongly object.
If the GA is the body that elects the board, the resigning member has to be voted by the GA. The reason is obvious. Suppose that the voting mechanism is set up (as it should be) avoiding a "majority takes all" situation, for example with a staggered vote. If according to this mechanism one minority position of any kind is voted into the board, the replacement of this member by a board-appointed person would change the balance expressed by the will of the electoral body (the General Assembly).
Is like if an elected member of a Parliament would be replaced by a vote of his/her peers instead by a vote of the electoral body.
I assume that this provision has been worded in this way under the assumption that the GA convenes only once a year. However, there is nothing that prevents a vote in electronic form. Actually, see further down (next articles) my arguments for e-voting.
N Perhaps the most straightforward way to solve this is for each GA to elect the board, as well as an alternate board member, who would become a member of the board in the case of a vacancy opening up. In the meantime they could join board meetings in a non-voting capacity.
Any thoughts?
P Referring to Nick:
What we do in ISOC when a board member resigns is to appoint the person who came second in the election. This respects the voters decision and at the same time saves us the hassle of going through another long election process, with the vacancy not being filled in the meantime.
R This can be fair enough or not, depending on the voting mechanism.
But in any case it would be better than let the board nominate the replacement, and would avoid a new round of elections.
I would propose a friendly amendament, that reads more or less "the first of the non-elected that fulfils all criteria", just in case we have gender quotas or geographical distribution limitation.
P Referring to Roberto:
I am fine with your amendment.
R Referring to Nick
Sorry to disagree, but even if this is a fair enough solution, I think that Patrick's one is preferable.
But I can live with either.
§ 13 Meetings and decisions of the board
(1) The board shall pass its resolutions in meetings conclude the business of the Assembly at meetings of its members.
C I do not understand the meaning of the above sentence.
(2) The meetings shall be convened by an invitation from the chairperson. In case of the Chairperson is unable so to do, the deputy chair person shall invite the board to meet. Where the chair and the deputy chair is unable so to do, the board may designate another member of that body to invite the board to meet.
(3) The agenda shall be announced. Notification of a meeting shall be sent not less than two weeks in advance. Board meetings may take place in person, via telephone or video-conferences or via the Internet.
R I assume those go together, in the sense that the agenda has to be announced at the moment of convening the board meeting.
Incidentally, we need a mechanism by which members can put an item on the agenda of the next board meeting. I am thinking of something similar to the intake process of the GNSO, but I'm open to any mechanism, provided that we do not give the feeling that the Board is ruling in isolation disregarding the wishes of the membership.
(4) The board shall form a quorum if at least 50 % of the members of the board are present or participate via other means. The board passes resolutions by simple majority; where a tied vote results the chairperson shall cast the deciding vote. Where the chair person is unable to attend the deputy-chair shall cast the deciding vote. The board is endeavoured to decide in consensus.
C The wording suggested by the translation provided by Nick (mail of Sept. 29) changed the meaning of § 13 several times. In the text above I tried to use the corrected translation to the extent it does not alter the original meaning.
R Interesting.
Let's see a practical case. Suppose a board of 4 members. A meeting is called by the Chairperson. Two board members are not available, but the meeting is valid anyway (50% present). The Chairperson is present (obviously: he/she called the meeting, and therefore it would be pretty odd if he/she chose an inconvenient date for hi/herself).
The meeting takes place, and there is an unsolvable difference of opinion between the two members present, and a vote is taken. The vote is split, but the Chairperson decides (according to the above).
Result: a motion passes with the support of only 25% of the board.
I think we need a rule by which a minimum affirmative vote is needed to pass a resolution. Maybe have a look at other similar organizations that work online? I mean, the low quorum follows from the concept of physical meetings, that Board members might be unable to attend. However, the minimum one could expect from an elected official of an organization is that this person makes a phone call at a certain time, given a fortnight advance notice. We cannot have rules so loose that one person out of four rules the organization.
§ 14 Advisory Council
(1) The General Assembly may establish an Advisory Council.
(2) The General Assembly shall determine the size and structure the Advisory Council where one is constituted.
(3) The Advisory Council shall form a quorum if at least 50 % of the members are present or are otherwise participating. The Advisory Council shall pass resolutions by simple majority. The Advisory Council is endeavoured to decide matters before it through consensus. For meetings and resolutions of the Advisory Council paragraph 13 of these articles of Associations apply accordingly. Except as otherwise provided in this Article 14, the Advisory Council shall operate according to the provisions of Article 13, mutatis mutandis.
R The consideration on quorum and majority made in the previous article still hold for this one, except that the problem is less critical because the Advisory Board is only advisory.
§ 15 Competency of the Advisory Council
(1) The Advisory Council, if not otherwise decided by the General Assembly, has the responsibility to advise the other bodies of the Association.
(2) The members of the Advisory Council are elected by the General Assembly for a period up to two years. The members remain in position until successors are elected.
§ 16 General Assembly
(1) In the General Assembly each individual member has one vote. Corporate and organisation members have three votes. Organisational members who are not ALSes have no voting rights.
R What's the difference btw. corporate and organization members? Not ALSes and non-ALSes, because the latter is taken care of by the second sentence.
(2) The General Assembly is responsible for the following matters:
(a) Approval of the budget for the next financial year, based on the budget submitted to it by the Board; reviewing the annual work record report of the board concerning the activities of the Association; resolution on the formal acceptance of the Board’s action. This last sentence would be needed if we incorporate in Germany.
(b) Determining membership fees;
(c) Establishing of the Advisory Council;
(d) Election and dismissal of the Board and the Advisory Council;
(e) Resolving to amend these Articles of Association and the dissolution of the Association;
(f) Nomination of honorary members;
(g) Installation of a secretariat.
(h) Electing the ALAC members representing Europe, if the association is European RALO of ICANN.
R This is the real crux of the matter.
In my Weltanschauung, the General Assembly is the boullion de culture of the ideas that float around. The meeting pont where the concerns and the ideas come together, and form the first level of policy making. It is a dynamic, multi-faceted, poliedric, lively, out-of-the-box, multicultural body, the real corazon of the organization.
I believe that the primary mission of Euralo is to shape the policy of the user community in ICANN-related matters. This objective might not be shared by all, I understand (and even after my statement on this subject in Berlin it does not show up as purpose of the association). And I can live with that. But an association where the board has the main role and the General Assembly is the folha do fig to justify the fact that we listen to people, is almost unbearable. What makes it really unbearable is that I have to take lessons of democracy from folks who do not discuss the matter but object to the form.
Anyway, although I think that matters like (a) budget, (b) fees, (c) establishment of advisory council, (d) election of Board, (e) amendments and dissolution, (f) honorary members, (g) secretariat, (h) ALAC members, are very important, we miss the main point of the General Assembly, which should not be the Zustimmungsstempel of decisions, but a laboratory of ideas. I guess that we are facing two different conceptions of democracy here. And therefore we have a basic disagreement, that has to be solved as soon as possible, on what is needed to make ICANN more democratic. Which I believe is the real point why we are all here.
Can I be constructive and propose additions or alternate formulations of this article? I don't know. For the time being, I can observe that this formulation, also coupled with the voting mechanism, makes me think more of an assemblea di condominio rather than the beating heart of the organization. And that worries me most.
I believe that we need to discuss this. Any contributions on the subject?
V I think that both elections and discussions need to happen online, so that everyone can participate independently from physical participation issues. I would rewrite the GA sections by turning it into a VGA (virtual general assembly) that is permanently happening by electronic means, initially through a mailing list. I'd rather specify in the Bylaws some stub principles for regulating virtual participation (for example, list post-moderation, netiquette, etc) by then deferring the actual details to a set of practical rules that can be defined by the Board. I'd also specify some basic points about electronic voting, for example what can be put to votes and how, and which guarantees are necessary (for example, minimum polling time, minimum advance notice, privacy of the votes, authentication etc.).
I would reiterate the idea that majority voting is to be used only if consensus can't be reached after trying to accommodate all points of view (see the IG Caucus Charter for an example of that). Does this sound ok?
R To be honest, I don't understand even why we have to discuss this.
I have no idea on how somebody could even think that an Internet-related body, moreover with members having wide geographical distribution and limited availability of time and money, in the years 2006 and beyond, would assume to do voting in f2f meetings.
But anyway, after all, it would be fun to have voting in physical meetings.
I assume also that we would cast our votes on clay tablets. Actually we might ask the Pergamon museum to dedicate a room to the exhibition of these ballots, together with a scholar description on why this method was used.
P Agree with Roberto. I would add that we should aim at including the bare minimum required in the bylaws and defer the details to the set of rules of procedures. Otherwise, we will loose a lot of time in these discussions, with no real progress in our relationship with ICANN.
§ 17 Convening of the General Assembly
(1) An ordinary general Assembly of the Association shall be held at least once per year. The Board shall convene the General Assembly by invitation to all members, at least one month in advance, said invitation generally being made via electronic-mail, which shall include the draft agenda. The notification period commences from the day after the invitation is sent. The invitation shall be sent to the last known address of each member. The agenda shall be determined by the Board.
(2) The General Assembly may take place via a physical meeting at a specific place, or via electronic means, or via a combination of both, provided the details of the procedure are pronounced in the invitation.
R Could. But could also not. Shall? Must? How can somebody even think of a General Assembly of a body that is by definition participating in Internet Governance as a physical gathering?
(3) Any member may submit an item for the draft agenda via e-mail by sending it to the Board at least two weeks prior to the date upon which the General Assembly shall commence.
R Good. How many members do we plan to have? How many items do they want to put on the agenda?
Reminds me of when I was chairing the DNSO General Assembly, and I had a (formally legitimate) request to allow the bidders to the TLD testbed to do a presentation of their proposal. Go to the November 2000 ICANN meetings log for details.
Other ICANN-related organizations have developed an intake mechanism. I am familiar with the one the GNSO is (or was?) using, but any proposal is OK, as long as we share the purpose.
(4) The chairperson of the General Assembly must announce any new items received via the operation of paragraph three of this Article at the beginning of the General Assembly.
(5) The General Assembly shall determine whether or not items on the draft agenda shall be modified, deleted, or further items added to the Agenda as part of its work.
§ 18 Extraordinary General Assembly
An extraordinary General Assembly shall be convened by the Board, if the interests of the Association requires one or where one tenth of the members of the Association so requests, stating the objective and reason for it in the request.
R I confess that, in light of the recent discussions, I don't understand this anymore.
Can somebody give me an example of "interest of association" that would require an extraordinary GA?
Is this only related to the (IMHO wrong) assumption that the GA votes only in f2f meetings?
§ 19 Decisions of the General Assembly
(1) The General Assembly shall be chaired by a member of the Board. If no board member is present or participating, the General Assembly shall elect a chairperson of the General Assembly. Where an election for the chairperson is required, the General Assembly may transfer the chair for the purposes of such an election to an electoral committee for the duration of the elections debate about the same.
R Referring to: "The General Assembly shall be chaired by a member of the Board."
Mmmmh. Why?
If the GA is the melting pot, the last thing I would do is to let the board (that already has a lot of power) rule the GA through an appointed official.
There was a time in which the role of političeskij komissar was considered the highest level of democracy, but this was long time agonbsp:>)
Anyway, no need to beat the Bush. We do have a problem here that is substantial, and is the role of the GA. The current formulation spells specific rules, without explicitely mentioning, but obviously implying, that the GA will meed in person, will not have online voting, etc.
No good, for me.
(2) The kind of vote required for any matter will be determined by the chairperson of the General Assembly. The poll has to be accomplished via ballot if one third of the present Members request therefore.
(3) The General Assembly shall form a quorum if at least one third of the members are present or participating. If the General Assembly cannot form a quorum the board is obliged to convene an additional General Assembly within four weeks with the same agenda; this General Assembly shall have no requirement for a quorum which shall be pointed out in the invitation to such a meeting.
(4) Resolutions of the General Assembly in general require the simple majority of those present or voting; abstentions shall not count as a vote. Amendments of these Articles of Association require a majority of two thirds of all votes; to change the aim of the Association or to dissolve the Association a majority of three fourths of all votes is necessary.
► Clarification about members present - using virtual GA. Danger: A quorum of a third of the organisation is large, activities may get blocked. Possible alternatives: No or small quorum for a normal GA. Two quorums for dissolution and change of bylaws. Applications for dissolution or change of bylaws are to be announced in the invitation for the GA.
(5) For an election candidates shall require an absolute majority of votes of the participating members. If no candidate receives an absolute majority a run-off election shall take place between the two candidates with the majority of votes. In the run-off election the candidate with the majority of votes cast shall be elected.
► Clarification of one election for several candidates.
(6) Resolutions of the General Assembly shall be recorded in writing, which must be signed by the Secretary of the Board.
§ 20 Dissolution of the Association
(1) For dissolution of the Association three-fourths of the current members must give their consent as provides in paragraph four of Article 19.
(2) In case of dissolution, where the General Assembly did not decide otherwise, the Board shall appoint two authorised liquidators.
(3) In the event of the Association’s dissolution its assets, if not otherwise decided by the General Assembly, will pass to ALAC who must use the assets according to the purposes of the then-current Articles of Association.
(4) The preceding rules shall apply also in the instance that the Association will dissolve or be dissolved or otherwise cease operation.
► further issues to clarify---
► For changing bylaws of the Association three-fourths of the present members of a General Assembly have to give their consent (paragraph 19 IV).
► Election of ALAC members: relationship of organisational and individual members?
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