January 2015 - Accountability-Cross-Community

[CCWG-Accountability] F2F Agenda and Call for Volunteers
by Grace Abuhamad Jan. 16, 2015

Jan. 16, 2015

Dear all, Below is the proposed agenda for the face to face meeting on Monday and Tuesday next week. You can also find this posted on the Wiki <https://community.icann.org/pages/viewpage.action?pageId=51414991> . Please note that, as discussed on the call this week, we'd like some volunteers to sign up for the "visions" portion of our first day (highlighted below). Please let me know as soon as possible if you are interested in making a pitch to the group. With such a diverse group, it would be great to illustrate the spread across the group by stakeholder groups and geographic region, and other types of diversity. Agenda (all times in local time UTC+1) DAY 0: Arrive Sunday 18 November Welcome cocktail for all attendees at 19:00-21:00 (Includes word from co-chairs (re: rules of engagement and agenda)) DAY 1: Monday 19 November (9:00 18:00) 08:30 09:00: Coffee & Introductions by Chairs and Theresa Swinehart 09:00 - 09:50: Update on CWG (RFP 3B + synchronizing timelines) 09:50 10:40: Finalizing list of contingencies 10:40 11:00: Coffee Break 11:00 13:00: Informal Pitch introductions of "visions" regarding outcome of our group 13:00 14:00: Lunch 14:00 14:50: Refining list and categories of stakeholders 14:50 15:40: Finalize wording on purpose of accountability 15:40 16:00: Coffee Break 16:00 17:00: Finalize rest of scope & definition document (including independence) 17:00 17:45: Advisor engagement update, provision of (independent) legal advice 17:45 18:00 Summary of Day 1 and action items DAY 2: Tuesday 20 November (8:00 17:00) 07:30 08:00: Coffee 08:00 09:40: Consensus building around WS1 definition 09:40 10:00: Coffee Break 10:00 12:45: identify candidate mechanisms to investigate within WS1 12:45 13:45: Lunch 13:45 15:25: Taking stock session (including discussion of potential Chair¹s report) 15:25 15:45: Coffee Break 15:45 17:00: Action items for initiating WS1 and preparation for Singapore End at 17:00 Later today, I will circulate a list of documents for reading in anticipation of the meeting. Best, Grace

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Re: [CCWG-Accountability] [ccTLDcommunity] Fwd: Accountability measures required by CWG Proposal(s)
by Dr Eberhard W Lisse Jan. 16, 2015

Jan. 16, 2015

Chris, this will not get unanimous consent, let me assure you. Though I seem to have overlook this particular morsel. el -- Sent from Dr Lisse's iPhone 5s > On Jan 15, 2015, at 23:58, Chris Disspain <ceo(a)auda.org.au> wrote: > > All, > >> We need the Accountability CCWG to provide an accountability process that registry operators (c’s & g’s) and possibly governments in the case of ccTLDs can use in cases where they think delegation and re-delegation decisions are not in line with approved policy or for governments local law. > > I know I keep pressing on this but I want to make sure we all understand before I stop and let it go. > > Are we, the ccTLDs comfortable with the CCWG drafting/creating an accountability process re delegation and re-delegation? > > Is this something we should be doing ourselves pursuant to the interpretations of the FoI WG? > > > Cheers, > > Chris > > > > Cheers, > > Chris Disspain | Chief Executive Officer > .au Domain Administration Ltd > T: +61 3 8341 4111 | F: +61 3 8341 4112 > E: ceo(a)auda.org.au | W: www.auda.org.au > auDA – Australia’s Domain Name Administrator > > Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email. > > Begin forwarded message: > >> From: "Gomes, Chuck" <cgomes(a)verisign.com> >> Subject: Re: [CWG-Stewardship] Accountability measures required by CWG Proposal(s) >> Date: 16 January 2015 01:55:07 AEDT >> To: Alan Greenberg <alan.greenberg(a)mcgill.ca>, CWG IANA <cwg-stewardship(a)icann.org> >> >> Alan, >> >> First let me put in writing the what I said in the last weekend call: We need the Accountability CCWG to provide an accountability process that registry operators (c’s & g’s) and possibly governments in the case of ccTLDs can use in cases where they think delegation and re-delegation decisions are not in line with approved policy or for governments local law. This may be covered by your item 4 (gTLD Delegation or Redelegation Appeal within ICANN prior to the change request going to IANA) although I am not sure that appeals would always have to happen before going to IANA; that would be preferred though. >> >> Alan – why do you think that this would conflict with item 2 (Independent certification for delegation and re-delegation requests)? In the case of gTLDs, the decision whether or not a gTLD could be delegated or re-delegated would happen before any certification would occur. The certification would simply confirm that required steps were followed properly. For gTLDs I think that any appeal would preferably happen before any certification happened but I suppose it could happen afterwards; those details would need to be defined. I won’t try to venture into the ccTLD world. >> >> On a totally different topic with regard to item 2, I don’t think that is something that we need the Accountability CCWG to deal with that. In my view, that seems to be clearly in our court. Any accountability for a certification decision would probably be covered by general accountability processes. >> >> Why is item 6 (Ability to Remove Directors) an action that the CWG needs from the CCWG. I agree that we need some specific accountability mechanisms from the CCWG but we don’t specifically need the one that would allow for the removal of Directors. That option may provide some of the accountability that the CWG needs but we require that specific option. >> >> Chuck >> >> From: cwg-stewardship-bounces(a)icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Alan Greenberg >> Sent: Thursday, January 15, 2015 1:12 AM >> To: CWG IANA >> Subject: [CWG-Stewardship] Accountability measures required by CWG Proposal(s) >> >> I believe that this is the minimalist list of accountability measures or accountability-related processes that would be required based on the two proposals currently under consideration. >> >> I have explicitly not included the wider list of measures that the CCWG is considering for possible inclusion in its WS1, specifically those which the community would like to see and for which the IANA transition might provide additional impetus for the Board to approve, but are not absolutely required to ensure that the IANA transition can occur. I recognize that this is a judgement call that not all might agree with. >> >> During the last of the four weekend meetings, Chuck mentioned one additional issue, and referred to a chat exchange between him and Donna during the third meeting that listed several other potential accountability issues. Unfortunately, that chat transcript was not preserved due to an error in saving it. >> >> The list of measures for the Contract Co. model is based on the list that the Co-Chairs created in December, augmented by Chucks suggestion. I do not believe that the December list has been negated by any work done in the interim, but perhaps I have missed something. I could not find a rationale for the inclusion of the first of the three items, but include it here so that the CWG could decide if it is based on a real need associated with the proposal or not. If included, I would suggest the CWG be more specific as to under what conditions it would apply. Chuck's suggestion seems to conflict with the 2nd measure in that the 2nd measure is specified as being binding. I am also not sure if it could possibly be replaced by the more generalized IAP (once the request goes to IANA). >> >> The requirements for the internal-to-ICANN model are based on my discussions with a number of people over the last weeks. >> >> Contract Co. Model Requirements >> >> 1. Independent Review of Board Actions >> >> Change the ICANN Bylaws to specify that under certain circumstances (to be defined) the determinations of an Independent Review of Board Actions Panel would be binding and not implemented at the Board's discretions. >> >> 2. Independent certification for delegation and re-delegation requests >> >> This would be a replacement for the authorization function for all changes to the Root Zone or its WHOIS Database currently performed by the NTIA. The replacement mechanism would have gTLD requests for delegations and re-delegations authorized by an independent third party and its decision on these matters would be binding on ICANN/IANA. >> >> 3. Independent Appeals Panel >> >> An independent review panel must be set up to deal with contested changes to the Root Zone or its WHOIS Database. Although discussions are still ongoing as to the specifics of such a proposal, it is generally agreed that the decisions of such a panel would be binding. There may also be a need for an injunction-like mechanism to defer the change in question during the appeal process. >> >> 4. gTLD Delegation or Redelegation Appeal within ICANN prior to the change request going to IANA >> >> A Registry could appeal an ICANN decision to delegate or redelegate and gTLD, based on policy not being followed (or presumably contractual terms not being followed). >> >> Internal-To-ICANN Model Requirements >> >> This model will require all of the above measures plus the following: >> >> 5. Control over ICANN Board decisions. >> >> The ability for ICANN Stakeholders, potentially augmented by other non-ICANN entities, to mandate or overrule, a particular Board decision, or to require that the implementation of such a decision be subject to consideration of an independent, binding review. These measures might need to be augmented by advance notice of such decisions and allow the MS community to react. In the most restricted form, this ability might be restricted to decisions related to IANA, but in reality, it may not be practical to define this scope limitation (ie how to recognize an IANA-related decision). >> >> 6. Ability to Remove Directors >> >> The ability of the overall multi-stakeholder community to remove some or all of the Board Directors. In the case of a full Board removal, a mechanism would be required for appointing an Interim Board and then a replacement regular Board. In addition, ACs and SOs could be given the right to recall their appointed Director(s). >> >> >> >> >> >> >> >> >> _______________________________________________ >> CWG-Stewardship mailing list >> CWG-Stewardship(a)icann.org >> https://mm.icann.org/mailman/listinfo/cwg-stewardship > > _______________________________________________ > ccTLDcommunity mailing list > ccTLDcommunity(a)cctld-managers.org > http://www.lists.cctld-managers.org/mailman/listinfo/cctldcommunity > > To unsubscribe please send a blank email to ccTLDcommunity-unsubscribe(a)lists.cctld-managers.org

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Re: [CCWG-Accountability] F2F Agenda and Call for Volunteers
by Roelof Meijer Jan. 16, 2015

Jan. 16, 2015

Dear Grace, all, I am interested to make a „pitch” to the group of my vision of a possible outcome / solution for enhancing ICANN’s accountability Regards, Roelof Meijer From: Grace Abuhamad <grace.abuhamad(a)icann.org<mailto:grace.abuhamad@icann.org>> Date: vrijdag 16 januari 2015 08:43 To: Accountability Cross Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-Accountability] F2F Agenda and Call for Volunteers Dear all, Below is the proposed agenda for the face to face meeting on Monday and Tuesday next week. You can also find this posted on the Wiki<https://community.icann.org/pages/viewpage.action?pageId=51414991>. Please note that, as discussed on the call this week, we'd like some volunteers to sign up for the "visions" portion of our first day (highlighted below). Please let me know as soon as possible if you are interested in making a pitch to the group. With such a diverse group, it would be great to illustrate the spread across the group by stakeholder groups and geographic region, and other types of diversity. Agenda (all times in local time – UTC+1) DAY 0: Arrive Sunday 18 November — Welcome cocktail for all attendees at 19:00-21:00 (Includes word from co-chairs (re: rules of engagement and agenda)) DAY 1: Monday 19 November (9:00 – 18:00) 08:30 – 09:00: Coffee & Introductions by Chairs and Theresa Swinehart 09:00 - 09:50: Update on CWG (RFP 3B + synchronizing timelines) 09:50 – 10:40: Finalizing list of contingencies 10:40 – 11:00: Coffee Break 11:00 – 13:00: Informal Pitch introductions of "visions" regarding outcome of our group 13:00 – 14:00: Lunch 14:00 – 14:50: Refining list and categories of stakeholders 14:50 – 15:40: Finalize wording on purpose of accountability 15:40 – 16:00: Coffee Break 16:00 – 17:00: Finalize rest of scope & definition document (including independence) 17:00 – 17:45: Advisor engagement update, provision of (independent) legal advice 17:45 – 18:00 Summary of Day 1 and action items DAY 2: Tuesday 20 November (8:00 – 17:00) 07:30 – 08:00: Coffee 08:00 – 09:40: Consensus building around WS1 definition 09:40 – 10:00: Coffee Break 10:00 – 12:45: identify candidate mechanisms to investigate within WS1 12:45 – 13:45: Lunch 13:45 – 15:25: Taking stock session (including discussion of potential Chair’s report) 15:25 – 15:45: Coffee Break 15:45 – 17:00: Action items for initiating WS1 and preparation for Singapore End at 17:00 Later today, I will circulate a list of documents for reading in anticipation of the meeting. Best, Grace

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[CCWG-Accountability] CCWG Work Area 2 (inventory of accountability suggestions -- updated 15-Jan-2015
by Steve DelBianco Jan. 16, 2015

Jan. 16, 2015

here’s a follow-up for Work Area 2 (WA2) arising from our 13-Jan call (link<https://community.icann.org/pages/viewpage.action?pageId=51414985>). (Will post these to the WA2 wiki soon as I can get access) First, I updated the WA2 inventory to reflect the new proposed definition for Work Stream 1 (WS1), as discussed on our 13-Jan call. Second, I updated the inventory to reflect additional Accountability suggestions and detail provided by Malcolm Hutty, the GNSO-NCSG (Non-Commercial Stakeholders Group), Robin Gross, Milton Mueller, the GNSO-IPC (Intellectual Property Constituency), and David Johnson. As rapporteur for WA2 I am trying to accommodate all suggestions, but also looking forward to the exercise of prioritizing this ever-expanding list of accountability mechanisms. Regards, Steve — Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.202.420.7482

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[CCWG-Accountability] call for volunteers to analyze contingencies
by Thomas Rickert Jan. 15, 2015

Jan. 15, 2015

All, following-up on my earlier note to the list and our last telephone conference, we would like to remind the group that we are looking for volunteers that take a look at contingencies of their choice (analzing all of them is too big of a task) and analyze whether these are already addressed by existing accountability mechanisms. As you will recall, we do hope to agree on the list that WA4 is currently working on. The exercise of analyzing the contingencies, which you can pick from the draft list, will help the group understand what contingencies are not yet covered by existing mechanisms, i.e. where we need to work on amendments of accountability mechanisms or establish new ones. Please let us know if you are willing to contribute to that task at your earliest convenience. Thanks, Thomas Rickert -- thomas-rickert.tel

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Re: [CCWG-Accountability] Work Streams definition
by Mathieu Weill Jan. 15, 2015

Jan. 15, 2015

Dear Tijani, The "new" proposal is in no way meant to be a substitute to the charter definition. The Charter definition, intentionally, left room for interpretation. Therefore the proposal we are now considering intends to provide the CCWG's interpretation and orientation. Indeed, we are delivering on one of the areas of work mentioned in our Charter, which read (section III, deliverables) : > > ·A definition/description of what differentiates a Work Stream 1 issue > from a Work Stream 2 issue > Thus, the question is whether the proposed version is found appropriate to the group in order to qualify what is necessary before the transition happens. I hope this clarifies. Best Mathieu Le 15/01/2015 10:52, Tijani BEN JEMAA a écrit : > > Dear all, > > I read again the new proposed definition of the Work Streams, and I > found it too different from the one in our charter: > > In the charter: > > ·*Work Stream 1*: focused on mechanisms enhancing ICANN accountability > that must be in place or committed to within the time frame of the > IANA Stewardship Transition; > > ·*Work Stream 2*: focused on addressing accountability topics for > which a timeline for developing solutions and full implementation may > extend beyond the IANA Stewardship Transition > > The new proposal: > > ·*Work Stream 1*mechanisms are those that, when in place or committed > to, would provide the community with confidence that any > accountability mechanism that would further enhance ICANN's > accountability would be implemented if it had consensus support from > the community, even if it were to encounter ICANN management > resistance or if it were against the interest of ICANN as a corporate > entity. > > ·All other consensus items could be in *Work Stream 2*, provided there > are mechanisms in WS1 adequate to force implementation of WS2 items > despite resistance from ICANN management and board. > > I don’t believe that we are allowed to change any part of the charter > without going back to the chartering organizations and ask for their > approval. > > On the other hand, the separation of WS 1 and WS 2 was for the purpose > of having the accountability mechanisms necessary before the > transition done in time, and the new definition doesn’t satisfy this > requirement > > I would prefer stay with the charter definition for all those reasons > > -------------------------------------------------------------------------------- > > *Tijani BEN JEMAA* > > Executive Director > > Mediterranean Federation of Internet Associations (*FMAI*) > > Phone: + 216 41 649 605 > > Mobile: + 216 98 330 114 > > Fax: + 216 70 853 376 > > -------------------------------------------------------------------------------- > > > > ------------------------------------------------------------------------ > <http://www.avast.com/> > > Ce courrier électronique ne contient aucun virus ou logiciel > malveillant parce que la protection Antivirus avast! > <http://www.avast.com/> est active. > > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Re: [CCWG-Accountability] Work Streams definition
by Kavouss Arasteh Jan. 15, 2015

Jan. 15, 2015

Dear All, Dear Tijani, I do not understand what do we mean by " New Defintion"Where it comes from ? Are we allowed to modify charter? >From the practical and logical view points, the language used in Charter is quite logical and correct. I therefore have certain difficulties for new suggestion Regards Kavouss 2015-01-15 10:52 GMT+01:00 Tijani BEN JEMAA <tijani.benjemaa(a)fmai.org.tn>: > Dear all, > > > > I read again the new proposed definition of the Work Streams, and I found > it too different from the one in our charter: > > > > In the charter: > > · *Work Stream 1*: focused on mechanisms enhancing ICANN > accountability that must be in place or committed to within the time frame > of the IANA Stewardship Transition; > > · *Work Stream 2*: focused on addressing accountability topics for > which a timeline for developing solutions and full implementation may > extend beyond the IANA Stewardship Transition > > > > The new proposal: > > · *Work Stream 1* mechanisms are those that, when in place or > committed to, would provide the community with confidence that any > accountability mechanism that would further enhance ICANN's accountability > would be implemented if it had consensus support from the community, even > if it were to encounter ICANN management resistance or if it were against > the interest of ICANN as a corporate entity. > > · All other consensus items could be in *Work Stream 2*, provided > there are mechanisms in WS1 adequate to force implementation of WS2 items > despite resistance from ICANN management and board. > > > > I don’t believe that we are allowed to change any part of the charter > without going back to the chartering organizations and ask for their > approval. > > > > On the other hand, the separation of WS 1 and WS 2 was for the purpose of > having the accountability mechanisms necessary before the transition done > in time, and the new definition doesn’t satisfy this requirement > > > > I would prefer stay with the charter definition for all those reasons > > > > > -------------------------------------------------------------------------------- > > *Tijani BEN JEMAA* > > Executive Director > > Mediterranean Federation of Internet Associations (*FMAI*) > > Phone: + 216 41 649 605 > > Mobile: + 216 98 330 114 > > Fax: + 216 70 853 376 > > > -------------------------------------------------------------------------------- > > > > > > > > > > > ------------------------------ > <http://www.avast.com/> > > Ce courrier électronique ne contient aucun virus ou logiciel malveillant > parce que la protection Antivirus avast! <http://www.avast.com/> est > active. > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >

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[CCWG-Accountability] Fwd: [CWG-Stewardship] Chart on CWG link with CCWG on Accountability
by Mathieu Weill Jan. 15, 2015

Jan. 15, 2015

Dear Colleagues, FYI, the co-chairs of the CWG have circulated for consideration within their working group a diagram laying out proposed interactions with our group. We will have an opportunity to discuss this in Frankfurt. Best, Mathieu -------- Message transféré -------- Sujet : [CWG-Stewardship] Chart on CWG link with CCWG on Accountability Date : Wed, 14 Jan 2015 08:56:18 -0000 De : Jonathan Robinson <jrobinson(a)afilias.info> Répondre à : jrobinson(a)afilias.info Organisation : Afilias Pour : cwg-stewardship(a)icann.org All, Please see attached for a draft / proposal for the mechanics and flow of linking the work of this CWG with that of the CCWG on Accountability. As you know, this is a critical area of our work. Accordingly, this chart is provided to facilitate discussion on the subject and to assist us in getting to a common CWG view of the linkage and relationship. Thank-you, Jonathan & Lise Co-chairs

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[CCWG-Accountability] WS1 vs WS2 recap and proposals
by Mathieu Weill Jan. 14, 2015

Jan. 14, 2015

Dear Colleagues, During our 30th December call, we had extensive discussions regarding what our group would consider work stream 1 or swork stream 2. We concluded with an action item as such : > *ACTION:* Recap of definitions of WS1/WS2 for mailing list and discussion next week. As Co-chairs, we have attempted to summarize the various inputs expressed on the list as well as during the calls on the matter. Below is a recap, including a proposal for discussion, inspired by the WA2 proposal, and which, in our opinion, would be a good candidate to move forward. This is for you review at this stage before we discuss it tomorrow during the weekly call. Comments or alternate will be welcome during the call or later on this thread. I'd like to once again thank Steve del Bianco and the WA2 team for their essential contribution to this key piece of our work. Mathieu ------------------------ Main inputs, comments and positions expressed so far regarding WS1/WS2: > Problem statement from our Charter : >> The concerns raised during these discussions around the transition process indicate that the existing >> ICANN accountability mechanisms do not yet meet stakeholder expectations. Recent statements >> made by various stakeholders suggest that current accountability mechanisms need to be reviewed >> and, if need be, improved, amended, replaced, or supplemented with new mechanisms (see for >> instance ATRT recommendations). Considering that the NTIA has stressed that it is expecting >> community consensus regarding the transition, a failure to meet stakeholder expectations with >> regards to accountability may create a situation where NTIA does not accept the IANA transition >> proposal as meeting its conditions. Thus reviewing ICANN’s accountability mechanisms was >> considered to be crucial for the transition process. > Work stream scopes from our Charter : >> In the discussions around the accountability process, the >> CCWG-Accountability will proceed with two Work Streams: >> >> * *Work Stream 1*: focused on mechanisms enhancing ICANN >> accountability that must be in place or committed to within the >> time frame of the IANA Stewardship Transition; >> * *Work Stream 2*: focused on addressing accountability topics for >> which a timeline for developing solutions and full implementation >> may extend beyond the IANA Stewardship Transition. >> >> >> The CCWG-Accountability will allocate issues to Work Stream 1 and >> Work Stream 2. Some issues may span both Work Streams. >> >> Suggested questions to be considered as part of Work Stream 1 >> include, but are not limited to: >> >> * What would be the impact of NTIA’s transition of the IANA >> Functions Contract in ensuring ICANN’s accountability and what >> potential accountability concerns could this cause? >> * What enhancements or reforms are required to be implemented or >> committed to before the NTIA Stewardship Transition? >> o How will these enhancements or reforms be stress-tested? >> * What enhancements or reforms must be committed to before the NTIA >> Stewardship Transition, but could be implemented after. >> o If the implementation of enhancements or reforms are to be >> deferred, how can the community be assured they will be >> implemented? >> o How will these enhancements or reforms be stress-tested? >> >> > Work Area 2 proposed definition of WS1/2 : >> WS 1 is designated for accountability mechanisms that must be in >> place of rimly committed to before IANA transition occurs. >> All other consensus items could be in WS2, provided*there are >> mechanisms in WS1 adequate for force implementation of WS2 items >> despite resistance from Icann management and Board.* > Paul Rosenzweig tentative defintiion of WS0 : >> >> As a result, I think that part of what we should be doing in the >> long run is focusing on the core/critical 3-5 items that are >> absolutely essential to ensuring accountability. In short, I >> think there is actually a sub-category of WS1 (call it*WS0*for >> want of a better term) that would be fundamental red-lines for >> the community. >> >> > Alan Greenberg's concern : >> Needs to demontrate why items in WS1 or WS2 are needed as a consequence of the NTIA transition. > > Comment from Becky Burr : > Understands the community to say there were certain basic > accountability mechanisms that would enable them to feel comfortable > with the IANA transition, these may not be directly related to the > transition itself. What we need from WS1 is the community feels > comfortable that tools are in place to continue the work to create > real and meaningful accountability. ----------------------------------- Proposal submitted for comments (to be presented and initially discussed during tomorrow's call): > WS1 mechanisms are those that, when in place or committed to, would > provide the community with confidence that any accountability > mechanism that would further enhance Icann's accountability would be > implemented if it had consensus support from the community, even if it > were to encounter Icann management resistance or if it were against > the interest of Icann as a corporate entity. -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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Re: [CCWG-Accountability] judicial/arbitral function
by Bruce Tonkin Jan. 14, 2015

Jan. 14, 2015

Hello Paul, >> And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation. For example the current independent review process identified in the bylaws states : https://www.icann.org/resources/pages/bylaws-2012-02-25-en#IV 1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws. 2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action." Also: "Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on: a. did the Board act without conflict of interest in taking its decision?; b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?" The Independent Review Process Panel shall have the authority to: "a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious; b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties; c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP; e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and f. determine the timing for each proceeding." The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review". The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update the bylaws could be updated. Regards, Bruce Tonkin

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