RE: [wg-review] Clarifications requested from BoD, Staff, NC, TC,Chair prior to co-Chair elections

[Karl Auerbach <karl@CaveBear.com>]

>
> "Under Article VI Section 2(c) of the ICANN bylaws, the ICANN board is
> obligated to refer to the Domain Name Supporting Organization those
> proposals 'not received from a Supporting Organization' and which pertain to
> the domain name system."
>
> While this accurately states the general tenor of Section 2(c), it fails to
> note the effect of Article VI, Section 2(g):
>
> "Nothing in this Section 2 is intended to limit the powers of the Board or
> the Corporation to act on matters not within the scope of primary
> responsibility of a Supporting  Organization or to take actions that the
> Board finds are necessary or appropriate to further the purposes of the
> Corporation."
...
> that ICANN (staff and board) can do ANYTHING it wants WITHOUT DNSO
> involvement.

There are two points:

First, if one reads section (g) as permitting unlimited discretion, the
prior sections are reduceded to nothing but surplus language.  And that
reduction to surplussage is contrary to accepted modes of interpretation.

Second, (g) is a general provision and under usual modes of interpretation
general provisions are modified by the more specific provisions, in this
case the obligation in the (a) through (f) provisions, to defer to the
DNSO.

Third, to trigger (g) the board must make a finding.  One could argue that
such a finding is implicit, but if that were the case, then why would the
text mention the need for the board to make a finding?  In any case, never
once has the Board made a "finding" under section (g) and, consequently,
has never properly set up the foundation to invoke section (g).

Sloppy draftsmanship coupled with "we-don't-care-what-the-bylaws-say"
practices == ICANN status quo.

		--karl--


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