I do think Louis Touton is correct that this is not a conflict of interest as defined by ICANN's bylaws or other resolutions, but I don't think that that is Louis Touton's call to make. Doesn't ICANN have a Conflict of Interest committee? This is at least the second time that ICANN staff (and/or its General Counsel) have blithely ruled that there is no conflict of interest on a given matter. According to the bylaws, that is not the staff's, or the General Counsel's job (anyone want to take on the documenting of how often ICANN has breached its own bylaws? I know it would be a herculean task.).|
Not only is the proper party in a legal sense not looking into the possibility of ICANN conflict(s) of interest, those who are are themselves in a conflict of interest. Because the BoD has the power to hire and direct and fire the staff and General Counsel, the latter parties are beholden to the former for their continued employment, and for often considerable financial advantage, therefore they cannot be expected to act independently or in an unbiased manner.
Meanwhile, whilst ISOC members (of which I also am one) cannot be expected to gain financially from ISOC getting .org, as the letter from ISOC to members posted elsewhere on these threads makes clear, ISOC will appoint the Board of PIR, probably from amongst its own members, and those individuals may be in a position to benefit financially. Thus one waits to see whether some ISOC members on the ICANN BoD have friends or associates who will benefit from the awarding of .org to ISOC. That still doesn't appear to be in violation of ICANN's COI policy, but, yeah, it smells, badly.
And while I'm on the subject of PIR, why is the ICANN staff (and Gartner) falling all over themselves to name Afilias/ISOC/PIR as the best choice when PIR doesn't even exist yet? It has no Board, no members, no Bylaws, no staff, no telephone number, no address, not even an email address. Yet somehow they beat out all the other candidates apparently because they are an entirely undefined entity, therefore one can hardly find fault with them as the ICANN staff (and Gartner and others) have with the other applicants who didn't do a bait and switch.
Let this be a(nother) lesson to potential applicants should ICANN ever again ask for tens of thousands of dollars per applicant (as in the new TLD rollout and the .org redelegation) for a chance at being chosen. Tell ICANN what they want to hear (or what looks plausible for public consumption if you know that you already have ICANN's, ear), and then do as you please, laughing all the way to the bank. If you don't already have the insider friends, or can't buy enough of them, there's no sense applying. You're throwing money down a very black hole. -g