ICANN | General Counsel's Analysis Regarding Challenge to Non-Commercial Users Constituency Election of GNSO Council Representatives | 8 April 2003
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General Counsel's Analysis Regarding Challenge to Non-Commercial Users Constituency Election of GNSO Council Representatives
8 April 2003

General Counsel's Analysis Regarding Challenge to Non-Commercial Users Constituency Election of GNSO Council Representatives


The Non-Commercial Users Constituency (NCUC) of the Generic Names Supporting Organization (GNSO) is currently operating under the "Second Charter Revision" of the Non-Commercial Domain Holders Constituency (NCDNHC) posted on 21 September 2000, as supplemented by a Charter Revision on Membership passed at the June 2001 Stockholm meeting and subsequently ratified online.

Under that charter, the NCUC has a five-member Administrative Committee, three members of which serve as its representatives to the GNSO Council. In late February 2002, Eung Hwi Chun, Harold Feld, and Erick Iriarte Ahon were selected for one-year terms as the NCDNHC's GNSO Council representatives. When ICANN's reform bylaws became effective on on 15 December 2002, these three individuals assumed the role of the NCUC's GNSO Council representatives. In the same February 2002 vote, Dany Vandromme and Thierry Amoussougbo were selected for one-year terms as the other two Administrative Committee members. The terms of all five Administrative Committee members, as well as the terms of three of them as GNSO Council representatives, expired on 27 February 2003.

Between 24 February and 3 March 2003, a voting process was conducted by the GNSO Secretariat on behalf of the NCUC. This voting process followed a nomination process in which only four names were put forward to serve on the Administrative Committee. In the voting process, votes were accepted from the organizations that were the NCUC's members in 2002 and the following results were recorded: Chun Eung Hwi: 17 votes; Milton Mueller: 12 votes; Gabriel Piñeiro: 2 votes; Marc Schneiders: 0 votes. According to the charter under which the NCUC is operating, the individuals receiving the three highest number of votes are selected to serve as the NCUC's GNSO Council representatives.

On 4 and 5 March 2003, the ICANN Secretary received notifications that Milton Mueller and Gabriel Piñeiro had been selected as representatives of the NCUC to the GNSO Council. No notice was provided regarding the selection of the third GNSO Council representative, but according to the vote above an incumbent, Eung Hwi Chun, appears to have received the highest number of votes.

On 12 March 2003, the ICANN Secretary received a message from Danny Younger challenging the process by which the NCUC selected its GNSO Council representatives. The GNSO Council was informed of this challenge soon afterward.

On 17 March 2003, as ICANN General Counsel with responsibility for the legal affairs of the corporation, I sent Harold Feld and Marc Schneiders, the designated NCUC representatives, a copy of Mr. Younger's challenge and a request that the NCUC provide a response. The NCUC's response was provided by Marc Schneiders on 20 March 2003. I then requested Mr. Younger to provide a reply, which he did on 21 March 2003. Mr. Schneiders provided a rejoinder on 25 March 2003.

The following analysis has been prepared based on the submissions, as well as the GNSO Secretariat's report on the vote.


On 4 and 5 March 2003, Harold Feld and Eric Iriarte, as outgoing GNSO Council representatives, gave the ICANN Secretary written notifications of the selection of their successors. Written notifications made by recognized officials of a constituency regarding the constituency's selection of GNSO Council representatives are presumed regular and correct upon their receipt by the Secretary. In view of this presumption, any challenge to the credentials of an individual designated as a constituency representative in the notification must be properly presented and must carry the burden of identifying a specific reason why the designation is improper.

(The Secretary did not receive written notification of the selection of Eung Hwi Chun to serve an additional term. As a matter of course, written notification should be provided to the ICANN Secretary of selection of individuals to any body within ICANN, even where an incumbent is being selected to serve an additional term.)

In his 12 March 2003 message, Mr. Younger presented several grounds for challenging the selection of the NCUC's GNSO Council representatives. Some of these appear to be substantively accurate. In fact, in its response the NCUC does not dispute that the selection process violated the requirements of the charter under which it is operating. In particular, the June 2001 Charter Revision on Membership states in part:

Membership shall be annual. The membership year will coincide with the Western calendar year. For existing member organizations, membership fees will be payable from Jan 1 to March 1. Organizations that have not renewed their membership fees by that date will be stricken from the membership list and not permitted to vote in the Adcom elections or other elections held during the calendar year. If any votes are held between Jan 1 and March 1, organizations that have not paid their membership fee will not be allowed to vote.

The NCUC admits that no member organization was invoiced or paid membership fees from 1 January 2003 to 1 March 2003. Under the stated requirement quoted above, no 2002 member of the constituency "renewed [its] membership fees" by 1 March; following the charter requirements would have meant that all existing members of the constituency would be "stricken from the membership list and not permitted to vote in the Adcom elections or other elections held during the calendar year." This, of course, was not done.

Despite this flaw (and perhaps other flaws) with the NCUC's selection process, however, it does not appear appropriate, based on Mr. Younger's challenge, to set aside the written designation of the selection of the NCUC's GNSO Council representatives as received by the Secretary, or the process followed for making those selections. This is in part because Mr. Younger lacks standing1 to bring his challenge, but also for these reasons:

1. The NCUC's selection process was essentially uncontested. There were five positions to be filled on the NCUC Administrative Committee; these were filled by the only four individuals whose names were put forward in the nomination process.2 Thus, there was no contest as to the membership of the Administrative Committee. Moreover, even as to the selection of three of the four Administrative Committee members to serve on the GNSO Council, there is no dispute among the candidates. The fourth Administrative Committee member has affirmatively stated that he "has no objections to the election procedure or the electorate list." Thus, the purported selection contest lacks a contestant.

2. Moreover, a Rule of Necessity counsels against sustaining Mr. Younger's challenge. As pointed out in the NCUC response, all possible alternatives for conduct of the selection process would also have violated one or more requirements of the charter under which the NCUC is operating. The NCUC's submission asserts that the course it followed resulted in the least severe violation, and that may well be true. Particularly in the context of the ongoing transition process to ICANN 2.03, which will require all constituencies to submit new charters and statements of operating procedures by 15 July 2003, it would be improvident to invalidate the NCUC's selection of its representatives based on Mr. Younger's challenge.

For the above reasons, it is my conclusion that it would not be appropriate, based on Mr. Younger's challenge, for the ICANN Secretary to set aside the written designation of the NCUC's GNSO Council representatives.

Additional Observations

As the above analysis indicates, even though Mr. Younger's challenge has not been sustained, there are tenable grounds to assert that the NCUC's process for selecting its GNSO Council representatives failed to follow required procedures in at least one, and perhaps several, respects. Although the challenge does not warrant setting aside the selection process in this instance, the present procedural irregularities are not isolated incidents within the experience of the NCUC and its predecessor, the NCDNHC. Procedural problems were common and chronic with the NCDNHC, starting with its failure to obtain Board approval of a revised, final Charter by February 2000 as it was required to do in the Board's October 1999 recognition of the constituency in resolution 99.100. In conducting a legal analysis of Mr. Younger's challenge, the constituency's repeated failures to follow proper procedures have confounded attempts to come to confident legal conclusions about even basic questions such as what charter properly applies.4 When legal analyses of a constituency's affairs must resort to "Rules of Necessity", it is legitimate to inquire more deeply as to root causes.

These observations are not intended to criticize in any way the hard work and good intentions of individuals who have been involved in the constituency. Instead, they reflect fundamental problems in the constituency's structure and constitution that have deprived it of the resources needed to conduct its affairs properly. As shown by the NCUC's 20 March 2003 response to Mr. Younger's challenge, failures of former constituency officials to attend to membership requirements inexorably led to this the current procedural irregularities. That fact, while tending to explain the reasons for the presently asserted violations, also highlights the fundamental and chronic nature of NCUC's difficulties, including a small and narrowly focused membership and a notable lack of interest by prominent non-commercial organizations involved in the Internet in participating in the constituency.

Under the Article X, Section 5(3) of the New Bylaws, a constituency maintains its recognition "only so long as it in fact represents the interests globally of the stakeholder communities it purports to represent." Constituencies must also "operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness." Based on past operations under the charter of the NCDNHC, it appears likely that significant changes in the constituency's composition and charter will be necessary if the NCUC is to meet these requirements.

According to Article XX, Section 5(3) of the New Bylaws, "each GNSO constituency shall submit to the ICANN Secretary a new charter and statement of operating procedures, adopted according to the constituency's processes and consistent with the New Bylaws, no later than 15 July 2003." In view of the above observations, it would be appropriate to treat this requirement as more than a simple "charter revision", but as also including a more fundamental assessment of how to redesign the constituency to better represent the interests of non-commercial organizations globally that use the Internet. Efforts to meet this requirement are more likely to be successful if they include the broader community of non-commercial organizations making use of the Internet, and are not limited simply to those persons currently participating in the NCUC.

Respectfully submitted,

Louis Touton
General Counsel


1. Mr. Younger does not purport to act on behalf of any organization that is, has ever been, or would be eligible to become a member of the NCUC. He also is not a member of the NCUC Administrative Committee or the GNSO Council. He was not a candidate in the selection process. Nor does he speak as an officer or Director of ICANN or some other person responsible for monitoring observance of procedural requirements.

2. After the nomination period, one additional person agreed to fill the fifth position.

3. By the term "ICANN 2.0", I refer to the structures and processes prescribed by the reform bylaws that took effect 15 December 2002, as subsequently amended.

4. For this reason, I refer simply to the "charter under which the NCUC is operating", without expressing an opinion as to whether that is the charter under which it legally should be operating.

Appendix: Notifications Received by Secretary

Subject: Results of NCUC Election
Date: Tue, 04 Mar 2003 10:49:29 -0500
From: "Harold J. Feld" <hfeld@mediaaccess.org>
To: touton@icann.org, "Names Council (E-mail)" <council@dnso.org>, Bruce.Tonkin@melbourneit.com.au

Dear Louis and Bruce:

Please be informed that pursuant to the existing bylaws of the NCUC, Milton Mueller has been elected as new NA representative. Accordingly,I resign from the GNSO, effective immediately.

It has been an honor and a privelege to serve on the Names Council of first the DNSO, now the GNSO, during this critical period of transition.

I have been impressed by the hard work, dedication and professionalism of my colleagues on the Names Council, and fully expect that the new representatives from the NCUC will continue to make significant contributions to the ICANN process.

Harold Feld


Subject: Changes in LAC (NCUC)
Date: Wed, 05 Mar 2003 01:18:01 -0500
From: Erick Iriarte Ahon <faia@amauta.rcp.net.pe>
To: Bruce.Tonkin@melbourneit.com.au, council@dnso.org
CC: touton@icann.org, "gabriel@derecho.org.ar" <gabriel@derecho.org.ar>


Like Harold, I resign from the GNSO. :)

In the elections, Gabriel Piñeiro has been elected as new LAC representantive and rep. in the Council and put some "latin blood"...

Only four words for all of you, in special to Glen: Thank you for all. It has been an honor serve in the Name Council in this "reform-time"

I take the words from Harold: "have been impressed by the hard work, dedication and professionalism of my colleagues on the Names Council, and fully expect that the new representatives from the NCUC will continue to make significant contributions to the ICANN process."

All of you work hard for the new icann, and try to make the system the best for all, in this new information society, you (each of you) are like "san paul" with the "good news", to this world.

See you

Erick Iriarte Ahon

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