Dear All, The notes, recordings and transcripts for the Intensive Meeting Day 1 Session 1 - 23 April will be available here: https://community.icann.org/display/acctcrosscomm/Day+1+-+Session+3 A copy of the notes and a summary of the session may be found below. Thanks, Best regards Alice ---- IN SUMMARY Recap of session 2 ACTION ITEM - Read legal counsel's executive summary of membership/designator models Revised Mission, Commitments & Core values ACTION ITEM - Insert suggestion regarding numbering resources in mission language AGREEMENT - The following proposal is to be plugged into the public comment: setting policy through a bottom-up, consensus–based multistakeholder process Fundamental Commitments & Core Values ACTION ITEM - Becky to remove "commits" and identify new terminology ACTION ITEM - State why 8.b is not in the document and whether it is fundamental Fundamental Bylaws ACTION ITEM - Add a memo to address request regarding numbering resources ACTION ITEM - Clarify that do not intend to change the current process ACTION ITEM - Reflect numbering policy-related document in edits ACTION ITEM - Rediscuss whether 18.1 should be listed as fundamental Bylaw AGREEMENT - Fundamental Bylaws will be integrated into public comment period Independent Review Panel Enhancements AGREEMENT - any outcomes from IRP would not be appealable under the proper IRP process but there would always be opportunity to challenge this decision in court of law AGREEMENT - Remove question 2 ACTION ITEM - Submit final wording to legal counsel to ensure it is appropriate ACTION ITEM - Replace "internal" with independent review panel ACTION ITEM - Clarify independence requirements Reconsideration Process Enhancements AGREEMENT - DIDP to be dealt with within WS2 AGREEMENT - The document can be used as is basis - DIDP is deferred to WS2. Welcome additional questions from WP2. Encourage community to look at items that are encapsulated in template SESSION CONCLUSIONS We have reviewed WP2. On mission and core values: fine-tuning is needed. We have open questions on how we address 18.1 and whether we want this as fundamental bylaw. Legal implications needed. We are close to final agrement on fundamental Bylaws. We have received a confirmation on legal feasibility on IRP and we have outlined key aspects of architecture for public comment. Lot of work is needed on details but we are on the right track for the public comment process. This also applies to the reconsideration process. We will resume some of open questions tomorrow and will come out with significant progress to report to the community. ---------- NOTES (Notes have not been reviewed by CCWG-CoChairs yet) These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. Michael Clark, Leon Sanchez not in the Adobe Connect Room Recap of session 2 We have not yet turned around the updated version of the document we worked on. It is due to issues encountered with notes. It will be sent shortly. Please read executive summary on membership/designator - community mechanisms executive summary legal counsel produced. With respect to Board recall: NomCom proposal and threshold will be discussed tomorrow. It was a useful discussion which shows we have ways to move forward ACTION ITEM - Read legal counsel's executive summary of membership/designator models Revised Mission, Commitments & Core values Substantive discussions were held in Istanbul and during meeting #20. An easy-to-use document was assembled to highlight changes from existing Bylaws and plug in AoC language. Text has been annotated to describe sources. A revised version including minor edits (in purple) or core values and commitments was circulated to circulate WP1 work on AoC. It corresponds to language that is in frozen draft (on p. 44). Feedback - References to consensus policy and specification 1 - pointer to section of a contract does not belong in Bylaws. Why are we restricting to consensus policy? --> This language is not intended to be final Bylaws language - agree that final language would not necessarily refer to specification 1. - Our mission is to develop policy based on consensus. Policy mission is used in contracts and bylaws i.e. picket fence: eligible to be changed immediately after approval of implementation of policy that changes contracts that are already enforced. They don't necessarily have effect of changing contract already in force. for instance, new gTLD. We need to discuss: 1) raison d'etre i.e. develop policy; 2) Enforceability i.e. A policy that converges consensus policy would be binding for contracting parties. A pragmatic way forward would be to use language referring to policy without specifying consensus policies. - Unless otherwise specified in Bylaws etc, we should go by consensus. - Policy issued by SOs should carry consensus. - Consensus policy has a defined contractual term: policies main only relate to gNSO space. There are also policies that relate to CCs and numbering. Let's not confuse that. - Ok to say mission is to develop community by consensus. There are a lot of policies that will not alter contract when setting them. - Would bottom up, community-based policies be a possible substitute? --> Combination of this language and language from Alan along with specific language of policies for which global coordination is necessary to preserve security, stability etc might work. Problem can be solved by specific language. - We are talking about how to constrain ICANN to its mission - for example: how must we deal with timezone database? Outside mission. Netmundial - outside mission. We need to give this organization the opportunity to breathe. - With consensus of community, consensus policy could be set and required. - Proposal: setting policy through a bottom-up, consensus-based multistakeholder process - Could you achieve consensus through bottom-up? - Need to bear in mind there are different definitions of consensus in various groups at ICANN. - Reminder to use CCWG draft report v1.1 for deliberations. - IP address and number resources: is the intention to leave it as it is? ACTION ITEM - Insert suggestion regarding numbering resources in mission language AGREEMENT - The following proposal is to be plugged into the public comment: setting policy through a bottom-up, consensus–based multistakeholder process Fundamental Commitments & Core Values - Proposal to change text on p. 23 "employ... processes" - Should be acknowledged ICANN is operating as an open, multistakeholder etc organization? - Fundamental Commitments - We have added language from articles of incorporation that references international law in order to make it durable RECAP - CCWG to further digest language that was suggested – will reopen, as needed. Moving to the "purple version" document - 4-23 Commitments and Core Values circulated by Becky prior to call Link: https://community.icann.org/download/attachments/52897394/4-23%20Annotated%2... Edits reflect AoC and WP1 AoC language. - Wordsmithing should be taken offline. - ICANN "commits" should be changed to ICANN "shall". Revisit this terminology ACTION ITEM - Becky to remove "commits" and identify new terminology - Request to discuss 8.b AoC. --> 8 a and 8 c were brought in as additional values. According to a careful read of existing bylaws - article 18 - covers 8b and says "shall" --> We should explicitly state the above. Is 8.b going to be fundamental? --> Why make 18.1 fundamental? --> 18.1 is existing bylaws and is consistent with AoC 8.b but open question whether 18.1 needs to be flagged as fundamental. ACTION ITEM - State why 8.b is not in the document and whether it is fundamental - What parts of these mission and values belong in articles of incorporation? One will create legal restriction. Wording needs to be flexible enough. Legal comments should be taken into consideration as drafting occurs. Fundamental Bylaws Memo was circulated yesterday. Conclusions from Istanbul were reinforced on 31 March. We had agreed on scope, principles and have legal confirmation it is feasible. Discussion today will be about additional elements provided in memo about thresholds to propose, to approve and about the process. We should also consider Jan Scholte advice: if we set threshold too high, we might create inability to change. - This memo says there will be a provision in bylaws that lists which will be fundamental. There may be parts of removal process that make more sense to leave in Bylaws rather than incoporating them into fundamental Bylaws. It would be easier to have all fundamental into one place but it would make Bylaws in general less difficult to use and would becloud transparency. - Why is the process only identified for Fundamental Bylaws changes that are identified by the Board/Staff? What if its a proposal recommended through a community process? --> There is a range of ways changes to Bylaws might come into existence. Wherever they emerge from they end up at Board making decision. - Is this process to be invoked only after Board has approved Bylaws? Do we have opportunity to reflect as part of public comment? If Board putting something out for public comment is trigger, Bylaws arise from different directions in organization and impact differently. -->There is no intention to change current process. Paragraph a deliberately uses through usual processes. The Board would need to cast higher majority. There is no intention to limit. We are trying to interfere as little as possible with current process. We do not need to be stuck in detail on where Bylaw is coming from. - Things work differently for numbers and names. Suggestion to add a memo that this description is considered to be applicable to numbering policy for further consideration to be made. ACTION ITEM - Add a memo to address request regarding numbering resources ACTION ITEM - Clarify that do not intend to change the current process - How will ideas be reflected into public comment period document? --> Everything that starts into 6.3 will be pasted in document for public comment ACTION ITEM - Reflect numbering policy-related document in edits ACTION ITEM - Rediscuss whether 18.1 should be listed as fundamental Bylaw AGREEMENT - Fundamental Bylaws will be integrated into public comment period Independent Review Panel Enhancements This is one of the most important goals to achieve. There is an existing process. We need to improve process. We have reviewed input that process only takes into account process but does not go into substance. Many commenters raised question or concern that if we were to design enhanced IRP, this panel would need to look into susbtance-related issues (in additional to procedural matters). The most relevant issues are the open questions in the document: outcome (binding or not), finality (can be appealed or not), selection, composition, independence, diversity and size of panel. - Outcomes, finality of process, selection process for panelists, size of panel, diversity, independence issues would benefit from public input. What is the level of input we would seek from community? - We have received memo from legal counsel. - IRP process can be enforceable - it is limited by scope of parties and there are couple of exceptions. It can be enforceable for a vast number of areas. Parties have great flexibility in designing process and these rules are vital. Agreement in our context would be in ICANN Bylaws - binding - we could insert agreement through which they become for members and arbitrators and it does not exclude third parties. - Arbitration is enforceable under Federal Arbitration Act. Prevailing party could take decision to court and have a court order to obtain complaint. Court will make sure it reflects due process. Award will be made strongly enforceable and can be taken to many countries: they are broad international acceptation of these awards. - Two exceptions exist: 1) Powers reserved to members: if community wants to have certain power reserved to members it can be reserved to members in documents that sets up membership structure. Powers of the members is superior to Board and IRP. It is a strong accountability measure; 2) Board fiduciary: there is a limitation in the law that matters are so material to the Board that it would undermine statutory obligations and fiduciary roles to allow IRP to bind Board. IRP would have ability to issue advisory rulings. - If there is an arbitration between two parties - the challenge to that in court would be a very limited one. Ground to changing are essentially to Federal courts - would not look back to substance. - Rule of decision is a flexible one. Whatever standard of decision, we could have rule of decision be what the group wanted. - Third parties could agree to process when they go into it. RECAP: IRP finality can either be a final solution or subject to appeals - - The IRP can be structured as arbitration body. - IRP can be binding - we won't need to recall Board to have Board take the IRP decision as binding but spilling the Board would be explored if they didn't act. - AGREEMENT - any outcomes from IRP would not be appealable under the proper IRP process but there would always be opportunity to challenge this decision in court of law - The standing to go to court would be determined by rules of that court. Parties to the agreement generally. - Understanding from Istanbul: IRP could issue limited set of decisions that could cancel decision from Board, cancel act or ask for a redo but not completely change the substance of a decision. Limited set of outcomes and last resort created balance. - Who decides on limits and criteria? - IRP evaluting action or inaction against mission, core values provision would be standard against which ICANN would be measured. --> The first instance set up as panel would have to decide whether it views itself as having jurisdiction. - The scope of the IRP appears limited to the parties involved, while the issues raised in any given case would be either of interest to the broader community and/or could set a precedent. So what happens if the IRP parties come to some form of agreement that is not considered acceptable to others? --> It would not be uncommon to allow intervention from parties. - IRP would be suitable for determining or challenging act of ICANN staff to determine in carrying out its mission, its acting in accordance with core values etc. This is the starting point of any IRP. - Does the IRP have an appeal process for any outcome/decision? Clarification needed. -> That is not the usual approach. Parties that volunteer agree to committing themselves. If demonstrated procedural error (IRP exceeded scope), appeal can be taken. People do create appeal mechanisms for arbitration. AGREEMENT - Remove question 2 - Decisions are final (no appeal) - The panel can only be of the following types : confirm decisions, or cancel decisions, partially or totally ACTION ITEM - Submit final wording to legal counsel to ensure it is appropriate - We are talking about mechanism that would be internal to ICANN - would be looking at ICANN experts. - We could have panelists nominated by Board and confirmed by the community. They could be proposed by international arbitration body. There would be separation of powers with respect to selection. They would be required to have expertise and skillset . We may be confusing people with "internal" language. We are looking for standing panel of arbitrators and the intention is to have them independent. ACTION ITEM - Replace "internal" with independent review panel In Istanbul, we discussed diversity and proposed the following selection process: 1) third party proposes names; 2) Board selects and 3) community group confirms. - There should be criteria that panels should not have engaged with ICANN for a x number of year. - Suggestion that requirement for them to remain Independent post term. ACTION ITEM - Clarify independence requirements - We first need to define size of panel befor discussing diversity - For example - panel of 7 arbitrators - 3 could be called upon to hear case and make decision. We would need 5 or 7 in all cases - could choose one etc. We are talking about small number of panelists - panelists who could be chosen to hear cases and called to form panel. - Difficult to reach geographical diversity --> It is critical hence minimum of 5 – put out question for community whether want to have extra arbitrators around. --> Diversity is one thing to strive for but should not be hard requirement. Agreement proposed standing panel 5-7 and decision between 1-3 to be put out for public comment. Open question: the Standing Panel members should have diversity in geographic and cultural representation. Diversity of experience will be considered in completing the composition of the Panel. We could consult community on this. Reconsideration Process Enhancements The reconsideration request process is defined in Bylaws. Reforms are not really significant - they are tailored to address specifc changes. - We have increased amount of time a person has to file request. We have increased standard of action. We have added transparency requrirements, improvements, posting rationale within timeline, recordings/transcripts transparency, opportunity to review documentation, deadline, determine that it would go to Ombudsman first and that decision would be made by entire Board. - What is the rationale for timeframe? --> To know how long it is taking people to get decision back would be useful - There have been discussions regarding strenghtening DIDP AGREEMENT - DIDP to be dealt with within WS2 Adding core values and mission, is that sufficient to revalue substance of a decision? --> Any decision could be challenged by anyone. What does this mean for finality of being able to accept that ICANN decision has been taken. There was pushback on broadening of scope. This was reaction to meet both sides of that concern. --> We have enough examples over years where community feels bad decision was made. Would this have changed any of the outcomes? --> Data would be needed. - Suggestion to couple this with fundamental Bylaws section related public comment questions. AGREEMENT - The document can be used as is basis - DIDP is deferred to WS2. Welcome additional questions from WP2. Encourage community to look at items that are encapsulated in template SESSION CONCLUSIONS We have reviewed WP2. On mission and core values: fine-tuning is needed. We have open questions on how we address 18.1 and whether we want this as fundamental bylaw. Legal implications needed. We are close to final agrement on fundamental Bylaws. We have received a confirmation on legal feasibility on IRP and we have outlined key aspects of architecture for public comment. Lot of work is needed on details but we are on the right track for the public comment process. This also applies to the reconsideration process. We will resume some of open questions tomorrow and will come out with significant progress to report to the community.