Proposed Corrections to Bylaws
(11 May 2003)

Proposed Corrections to Bylaws
11 May 2003

To the Board and the Community:

On 25 February 2003 and 18 March 2003 (effective 25 March 2003), the ICANN Board adopted corrective revisions to the New Bylaws that went into effect on 15 December 2002. Since that time, several additional items needing technical corrections have come to light. (This is not surprising considering the growth in detail of the bylaws. The present bylaws are composed of approximately 23,500 words, compared to 10,600 words in the bylaws before 15 December 2002.) In each case, the revision is intended to correct an inconsistency or inadvertent omission.

As General Counsel, I therefore propose the following additional revisions to the bylaws, to be considered at the Board's next meeting currently scheduled for 2 June 2003. Deleted text is shown in strikeout type and in red; added text is underlined and in magenta.

I invite comments on the following proposed revisions, as well as any comments concerning other needed corrective revisions. They should be sent to me at <touton@icann.org>.

Respectfully submitted,

Louis Touton
General Counsel

ARTICLE IV: ACCOUNTABILITY AND REVIEW, Section 4. PERIODIC REVIEW OF ICANN STRUCTURE AND OPERATIONS

The Board shall cause a periodic review, if feasible no less frequently than every three years, of the performance and operation of each Supporting Organization, Supporting Organization Council, Advisory Committee (other than the Governmental Advisory Committee) and Nominating Committee by an entity or entities independent of the organization under review. The goal of the review, to be undertaken pursuant to such criteria and standards as the Board shall direct, shall be to determine (i) whether that organization has a continuing purpose in the ICANN structure, and (ii) if so, whether any change in structure or operations is desirable to improve its effectiveness. The results of such reviews shall be posted on the Website for public review and comment, and shall be considered by the Board no later than the second scheduled meeting of the Board after such results have been posted for 30 days. The consideration by the Board includes the ability to revise the structure or operation of the parts of ICANN being reviewed by a two-thirds vote of all members of the Board. The first such reviews, to be initiated within one year following the adoption of these Bylaws, shall be of the GNSO Names Council and the ICANN Root Server System Advisory Committee. The Governmental Advisory Committee shall provide its own review mechanisms.

[Explanation: Article IV, Section 4 was a significant innovation in the New Bylaws, recognizing that (in the Evolution and Reform Committee's words), "an organization like ICANN, dealing with a medium as rapidly changing as the Internet, must be willing and able to change as required by future events." Thus, Article IV, Section 4 establishes "a requirement for periodic review of all elements of ICANN, to ensure that bureaucratic inertia does not set in . . . ."

This staggered review of all of ICANN's structures was intended to lead to structural and operational improvements based on the review. This ultimate outcome of the review is not clearly stated in the language, and some ambiguities have arisen as to how changes will be effected. To clarify matters, an additional sentence is proposed to ensure that all the independently reviewed parts of ICANN will be subject to revisions in their structure and operation by a two-thirds vote of all members of the Board. This is the vote required by Article XIX for amendments to the bylaws.]

ARTICLE VII: NOMINATING COMMITTEE, Section 8. INELIGIBILITY FOR SELECTION BY NOMINATING COMMITTEE

No person who serves on the Nominating Committee in any capacity shall be eligible for selection by any means to any position on the Board or any other ICANN body having one or more membership positions that the Nominating Committee is responsible for filling, until the conclusion of an ICANN annual meeting that coincides with, or is after, the conclusion of that person's service on the Nominating Committee.

[Explanation: The addition to the title of Article VII, Section 8 is proposed to distinguish it from Article VII, Section 9, below.]

ARTICLE VII: NOMINATING COMMITTEE, Section 9. INELIGIBILITY FOR SERVICE ON NOMINATING COMMITTEE

No person who is an employee of or paid consultant to ICANN (including the Ombudsman) shall simultaneously serve in any of the Nominating Committee positions described in Section 2 of this Article.

[Explanation: The New Bylaws contain no restriction on ICANN employees and paid consultants serving on the Nominating Committee. Because these roles are inconsistent with the independent operation of the Nominating Committee, an express prohibition should be included.]

ARTICLE X: GENERIC NAMES SUPPORTING ORGANIZATION, Section 3. GNSO COUNCIL

1. Subject to the provisions of the Transition Article of these Bylaws, the GNSO Council shall consist of two representatives selected by each of the Constituencies described in Section 5 of this Article, and three persons selected by the ICANN Nominating Committee. No two representatives selected by a Constituency shall be citizens of the same country or of countries located in the same Geographic Region. There may also be two liaisons to the GNSO Council, one appointed by each of the Governmental Advisory Committee and the At-Large Advisory Committee from time to time, who shall not be members of or entitled to vote on the GNSO Council, but otherwise shall be entitled to participate on equal footing with members of the GNSO Council.

[Remaining paragraphs unchanged]

[Explanation: Article VI-B, Section 3(c), of the Old Bylaws provided that no two of a constituency's representatives on the DNSO Names Council could be from the same ICANN Geographic Region. Due to an oversight, that geographic diversity requirement was not carried over to the GNSO Council. Consistent with Core Value 4 ("Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making."), the proposed sentence restores the requirement. Geographic diversity in the Nominating Committee's selections to the GNSO Council is required by Article VII, Section 5, of the New Bylaws.]

ARTICLE XI: ADVISORY COMMITTEES, Section 2. SPECIFIC ADVISORY COMMITTEES

There shall be at least the following Advisory Committees:

1. Governmental Advisory Committee

f. The Governmental Advisory Committee shall annually appoint one non-voting liaison to the ICANN Board of Directors, without limitation on reappointment, and shall annually appoint one non-voting liaison delegate to the ICANN Nominating Committee.

[Explanation: As stated in Article VII, Section 2(5), of the New Bylaws, the Governmental Advisory Committee has a non-voting liaison, rather than a voting delegate, on the Nominating Committee. The above revision to Article XI, Section 2, corrects an inconsistency.]

ARTICLE XIV: INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS

ICANN shall, to maximum extent permitted by the CNPBCL, indemnify each of its agents against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact that any such person is or was an agent of ICANN, provided that the indemnified person’s acts were done in good faith and in a manner reasonably believed to be in ICANN’s best interests and not criminal. For purposes of this Article, an "agent" of ICANN includes any person who is or was a Director, Officer, employee, or any other agent of ICANN, (including a member of any Supporting Organization, any Advisory Committee, the Nominating Committee, any other ICANN committee, or the Technical Liaison Group) acting within the scope of his or her responsibility and on behalf of the best interests of ICANN; or is or was serving at the request of ICANN as a Director, Officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise. The Board may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any agent of ICANN against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not ICANN would have the power to indemnify the agent against that liability under the provisions of this Article.

[Explanation: Under the New Bylaws, ICANN is constituted of many different types of bodies. The proposed revisions make clear that persons acting within the scope of their responsibilities on those bodies should be indemnified provided they act in good faith and in a manner reasonably believed to be in ICANN's interests and not criminal.]

Page Updated 08-Apr-2009
©2003 The Internet Corporation for Assigned Names and Numbers. All rights reserved.