>
> 1. Resolution 1
>
> A resolution to introduce new eligibility criteria for nominees in
> Executive Council elections.
>
> Resolution
>
> That the By-laws of the Special Committee known as APNIC be amended by
> inserting the following new clauses 34A and 34B:
>
> 34A. To be eligible to be nominated and to stand for election to the
> Executive Council, an individual must:
> ...
> e. submit a declaration that they:
> (i) agree to abide by these by-laws and the rules governing the
> relevant election; and
> (ii) satisfy all eligibility requirements to be nominated and to
> stand for election to the Executive Council,
> which if later found to be false or misleading will result in
> their election being deemed invalid and their term coming to an
> immediate end.
It’s unclear to me from this text who has the power to make that determination.
While some may think that there is an obvious answer to this question, that
should
be clearly spelled out in the bylaws or it is open to abuse.
The likely obvious answer (the EC themselves) also has the potential to invite
abuse.
OTOH, the overhead of a general vote of members is impractical. IMHO, this
should
be vested in some combination of an independent review panel and the EC such
that
sufficient safeguards are put in place to prevent the most likely forms of
abuse.
> ...
> 2. Resolution 2
>
> A resolution to preserve the independence and geographic representation
> of the Executive Council.
>
> Resolution
>
> That the By-laws of the Special Committee known as APNIC be amended by
> inserting the following new clauses 34C, 34D, and 34E:
> ...
> 34E. For the purpose of by-law 34D, where multiple individuals who
> principally and ordinarily reside, and maintain a primary residence, in
> the same economy receive sufficient votes to be elected in the same
> year:
> a. the individual with the highest votes will be declared elected;
> and
> b. the other individual(s) with the lower votes will be deemed
> ineligible and excluded.
Two questions here…
1. What happens in the event of a tie?
2. Who makes the determination of a candidate’s primary residence and
where are the criteria by which this is determined spelled out?
> 3. Resolution 3
>
> A resolution to prevent individuals involved in litigation against APNIC
> from being nominees in Executive Council elections.
>
> Resolution
>
> That the By-laws of the Special Committee known as APNIC be amended by
> inserting the following new clause to be numbered 34F:
>
> 34F. An individual who is involved in current litigation or proceeding
> against APNIC in a court or tribunal (or equivalent) anywhere in the
> world (or, where the litigant party is an organisation, an individual
> who is a director, controlling shareholder, or employee of such
> organisation or its related bodies corporate), except where such
> litigation or proceeding was commenced by APNIC, is not eligible to be
> nominated nor stand for election to the Executive Council.
I appreciate that the scope of this proposal has been reduced to circumstances
where the individual in question is the plaintiff rather than the
defendant/respondent.
I think that addresses my concerns about the potential for abuse.
> 4. Resolution 4
>
> A resolution to limit the control one organisation (or corporate group)
> can have on the Executive Council.
>
> Resolution
>
> That the By-laws of the Special Committee known as APNIC be amended by
> deleting the following words from clause 35:
>
> “Only one individual per Member organisation may be elected to sit on
> the Executive Council.”
>
> and inserting the following new clauses 35A and 35B:
>
> 35A. Not more than one individual who has an association with any
> organisation within a Corporate Group may be elected to the Executive
> Council at any time. This by-law 35A does not apply to individuals who
> only have an association with an Exempt Organisation.
My concerns here are the following:
1. Corporate Group is a vague and ambiguous term.
2. The existence of Corporate Groups is frequently not transparent
or
readily discernible (even if one applies any likely definition
of the term)
Even with the clarifying definition below, non-transparency and
significant
potential for avoidance exist.
> 35B. For the purpose of by-law 35A:
> a. “has an association with” means being a director or controlling
> shareholder of, or being employed by, or having a consulting
> relationship with, or receiving material compensation from, such
> organisation.
As I read this clause, it would permit the entire EC to be comprised of
persons who are volunteers affiliated with $NGO or other $non-profit
entity.
> b. “Corporate Group” means an organisation (whether incorporated or
> not), together with all other bodies corporate with the same
> ultimate beneficial owner, and all their related bodies corporate.
Tracing the ultimate beneficial owner of a corporation is a rather fraught
process in many jurisdictions.
> c. “Exempt Organisation” means:
> (i) APNIC or any of its related bodies corporate;
> (ii) an organisation or a community body that operates on a
> not-for-profit basis, and either:
> 1. performs a role of Internet coordination, operations, or
> governance, the name of which is specified by the
> Executive Council and published by APNIC on its website
> from time to time; or
> 2. performs a function that is wholly unrelated to APNIC’s
> activities (for example: sporting clubs or academic
> clubs, etc.).
This clarification reinforces my concern stated above.
> d. Where multiple individuals who have an association with the same
> Corporate Group receive sufficient votes to be elected in the
> same year:
> (i) the individual with the highest votes will be declared
> elected; and
> (ii) the other individual(s) with the lower votes will be deemed
> ineligible and excluded.
Again, what is done in the event of a tie?
> 35C. Electoral Committee
> a. The Executive Council must establish an Electoral Committee to
> oversee the nominations and nominee conduct during each Executive
> Council election.
> b. The Electoral Committee:
> (i) is a sub-committee of the Executive Council;
IMHO, this should be an independent committee, not a sub-committee of the EC.
> (ii) will be appointed by the Executive Council and will consist
> of at least three and not more than seven members;
IMHO, should be made up of a relatively equal combination of EC members,
Staff, and Community representatives.
> ...
> (v) with respect to sub-clauses (iii) and (iv) of this by-law
> 5C(b), has the power to exclude a nominee from the relevant
> election following the announcement of the election results
> in circumstances where the state of affairs giving rise to
> such ineligibility or non-compliance with the Code of
> Conduct existed prior to the announcement of the election
> results;
I think that’s 35C(b)
A protection should be added to prevent the committee from acts
of ex post facto (creating a rule after an act) or modifying the CoC
during the election process for the purpose of excluding a candidate.
> (vi) may, with the consent of the Executive Council, delegate
> any of its powers or functions to an independent
> organisation as it considers reasonably appropriate; and
Additional clarity is needed as to why this is desirable or it should,
IMHO, be struck. There is wide potential for abuse embedded in this
clause.
> ...
> c. All nominees for the Executive Council must agree as a condition
> of their nomination to:
> (i) waive any and all claims the nominee may have against the
> Electoral Committee or its members in relation to the
> actions of the Electoral Committee, other than in
> circumstances where the Electoral Committee has acted in bad
> faith; and
> (ii) submit to the decisions of the Electoral Committee, which
> will be final and binding.
Something like this immunity clause is necessary, but IMHO, this one
goes too far.
Owen
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