Hi Robin, Thank you for your suggestions March 8th and yesterday. Here are my personal thoughts: Agree with you on standing, standard of review, composition, accessibility, and the due process point about allowing the requestor to see the documents against it, subject to legitimate confidentiality requirements that would have to be worked out. I do not at present support oral argument for this process unless the board requests it and then rebuttal would make sense. As for precedential value, it makes sense that a party could argue that a precedent was incorrectly decided and should be reconsidered but it should be made clear, IMO, that that does not provide any relief going backward in time - in other words, if a precedent is overruled it does not reopen old cases. A few other points I would add. First, in Art. IV, Section 2, paragraph 4 I would make it clear that a frivolous claim amounts to a cost that would be extraordinary in nature. And in paragraph 9 (ii) it probably makes sense to delete the word "querulous" (not sure what it means in this context) and in paragraph 9 (iii) maybe add "actual" to "notice." David From: wp2-reconsideration-bounces@icann.org [mailto:wp2-reconsideration-bounces@icann.org] On Behalf Of Robin Gross Sent: Tuesday, March 17, 2015 12:58 PM To: wp2-reconsideration@icann.org Cc: wp2@icann.org; Accountability Cross Community Subject: Re: [reconsideration] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Below are a few further elaborations on the Reconsideration Request reforms that are needed. Please provide additional feedback and suggestions on how to reform this process. Thanks, Robin ICANN Bylaws, Art IV, Section 2 is on the Reconsideration Review Process https://www.icann.org/resources/pages/governance/bylaws-en Reconsideration Request reforms to address implementation and operational issues including: 1. Standing Amend "who" has proper standing to file a Reconsideration Request to widen its scope to include any party impacted by the ICANN decision / inaction. The current two step test of demonstrating both i) material harm, and ii) adversely impact is too burdensome and restrictive. Current rule: "Every requestor must be able to demonstrate that it has been materially harmed and adversely impacted by the action or inaction giving rise to the request." - Bylaws IV Section 2, Para 8 2. Standard of Review Amend the standard of reviewing a Reconsideration Request to include a re-examination of the underlying merits of arguments and decisions. Also broaden the types of decisions which can re-examined. Also, amend when BGC may "summarily" dismiss a request based on Requester not participating in a public comment period on the issue. (Para 9) 3. Composition Currently, the Board Governance Committee works with the legal dept to formulate an initial recommendation* to the full board. While I understand the need for some legal advice to the BGC, it may be the case that less reliance on the legal dept to guide the BGC on its recommendation would be more fruitful and encourage the board members themselves to engage deeper in the process, obtain a greater understanding of the underlying issue, and take more responsibility for making these decisions. (*Except: Issues regarding staff action/inactions and 3rd party panels in new gtld program, in which the BGC has option of making final decision itself, rather than full board. This should be amended so entire board learns what staff is up to, not just BGC). 4. Selection N/A 5. Decision-making Transparency improvements are needed regarding the information that make up the decision-making process. Reconsideration Request decisions currently have "precedential value" - so a party affected by a previous decision should be able to challenge the previous decision to which his case is bound under precedent. 6. Accessibility Extend the time deadline for filing a Reconsideration Request to 30 days. Currently, the deadline for filing is (generally) 15 days from when decision/action is taken and posted or when one can reasonably conclude action/decision will not happen. 7. Implementation Requestors may need a follow-up process regarding implementation of decision reconsidered 8. Due process Provide opportunity for oral argument with rebuttal opportunity. Currently it is at the Board's option if it wishes to permit an oral discussion. Provide all briefing materials supplied to board to Requester so that they may know the arguments against them and have an opportunity to respond. Final decisions should be issued sooner. Requests for "urgent" reconsideration should be broadened and less subjective in criteria for acceptance of "urgency". What else???? On Mar 8, 2015, at 3:19 PM, Robin Gross wrote: Hello, This email is to kick-off the discussion for the Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Mechanisms. Volunteers so far: Robin Gross, Ed Morris, Chris LaHatte, David McAuley, Carlos Gutierrez (please send a note to <alice.jansen@icann.org<mailto:alice.jansen@icann.org>> to volunteer for this sub-group). This WP2 sub-group should will look specifically at issues to be addressed with respect to improving ICANN's accountability mechanisms involving a reconsideration process of a board or management decision. Specific Task: To review the current rules under which reconsideration occurs, and to propose appropriate changes to those rules to create adequate accountability. Existing "Reconsideration Request" accountability mechanism: See ICANN Bylaws Art. IV, Sec. 2) Board reconsideration of: - One or more staff actions or inactions that contradict established ICANN policy(ies); or - One or more actions or inactions of the ICANN Board that have been taken or refused to be taken without consideration of material information, except where the party submitting the request could have submitted, but did not submit, the information for the Board's consideration at the time of action or refusal to act; or - One or more actions or inactions of the ICANN Board that are taken as a result of the Board's reliance on false or inaccurate material information. ----------------------------------------------------------------------- Suggestions for Change/Enhancement ICANN's Reconsideration Processes: 1. Mechanism for review of Board or management action in conflict with ICANN Bylaws or Articles of Incorporation. 2. Mechanism to require community (members, AC/SOs, etc.) to require Board to act on, implement, amend, accelerate implementation of, a previously approved ATRT recommendation. 3. Change bylaws for Reconsideration Process: trigger when board acts arbitrarily or capriciously; decisions subject to Independent Review. 4. Reconsideration of staff action/inaction. 5. Broadly expand grounds on which ICANN decisions and operations can be challenged; lower threshold to succeed in a challenge. 6. Reasonable time deadlines and other due process considerations. What else? ------------------ Proposal to address implementation and operational issues including: * Standing * Standard of review * Composition * Selection * Decision-making * Accessibility * Implementation * Due process Work Party 2 Reconsideration mailing list - wp2-reconsideration@icann.org<mailto:wp2-reconsideration@icann.org> - is now active. Public archives may be found at: http://mm.icann.org/pipermail/wp2-reconsideration/ May this sub-group please have a wiki page? Thank you. Please volunteer for this sub-group - especially if you have any experience with ICANN's reconsideration process. Thanks, Robin