I tend to favor the stand-alone standard of review. Trying to turn this into a "violation of the bylaws" seems a bit tortured. Especially when PTI is a free-standing non-profit corporation controlled (but not "owned") by ICANN. PTI really needs to be a party to any "PTI IRP." I'm sure we can get help from the CWG (myself included) in articulating the cause of action, standard of review, etc. Greg On Wed, Jan 20, 2016 at 2:42 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
I am willing to address this issue either way here. We just need clarification from the CWG as to its preference. Either we create a stand-alone standard of review (in which case I need help articulating) or we say (in the Bylaws) that ICANN is responsible for ensuring that PTI gets it right, and allow challenges via the IRP on the basis of ICANN’s actions or inactions that fall below this standard.
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367 */* *neustar.biz* <http://www.neustar.biz>
From: <Schaefer>, Brett <Brett.Schaefer@heritage.org> Date: Wednesday, January 20, 2016 at 10:45 AM To: Greg Shatan <gregshatanipc@gmail.com>, Avri Doria <avri@acm.org> Cc: Accountability Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] PTI and the IRP
I agree and would add that DIDP appeals, although they potentially could involve a bylaws violation I suppose, would most often involve an independent review via IRP of the original decision to ensure that it was correct.
It seems that the IRP is being stretched in the borrowing. At the very least, there needs to be clarification that on how the IRP should handle these matters if it is the proper vehicle and, if it is not, what exactly should be created to handle these matters.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Wednesday, January 20, 2016 12:36 AM *To:* Avri Doria *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] PTI and the IRP
Avri,
I agree with your analysis and share your concern. The PTI IRP is fundamentally not a Bylaws issue (or more accurately -- fundamentally not a "violation of the Bylaws" issue).
Having "borrowed" the IRP in an attempt to fill the requirements of the CWG, we can't then pretend that the requirements of the CWG are coterminous with the general design of the IRP. The CWG's requirements will require a specific statement of the basis on which a claim may be brought -- and it is a different basis than for other IRP claims. This doesn't have to be long, but it does have to be right.
Conversely, if we are truly wedded to the idea that the IRP is a "bylaws court" and nothing more, then it can't be used to satisfy the CWG's requirement and we will need to do something else. Personally, I don't endorse this position (though it does raise some concern about the ability of the panel to deal with PTI failures, if it is designed to be a bylaws court. That said, I have sufficient faith in the skill of experienced arbitrators to be able to resolve a variety of disputes.)
Since this a requirement for the transition, we need to resolve this crisply, explicitly and appropriately.
Greg
On Wed, Jan 20, 2016 at 12:25 AM, Avri Doria <avri@acm.org> wrote:
Hi,
I am uncomfortable with closing the discussion of the new principles for the IRP. Since we decided not to create a new entity to serve the requirements of the CWG but rather to make it a function of the IRP, we need to make sure that the basis for the IRP is fit for purpose before starting on its implementation.
The CWG calls for:
1. *Appeal mechanism*. An appeal mechanism, for example in the form of an Independent Review Panel, for issues relating to the IANA functions. For example, direct customers with non-remediated issues or matters referred by ccNSO or GNSO after escalation by the CSC will have access to an Independent Review Panel. The appeal mechanism will not cover issues relating to ccTLD delegation and re-delegation, which mechanism is to be developed by the ccTLD community post-transition.
I do not see how to define this function in terms of By Laws alone as By Laws have little to say about negotiated SLAs and the customers' or CSC complaints. Perhaps it can be done by changes to some of the By Laws, but I do not see us as having scoped out what those changes need to be.
So until such time as we have dealt the the policy issues of filling the CWG's requirements, I would like to register a personal caution, and thus an objection, to closing the discussion of the basis and standing for IRP appeals. I do not believe this is merely an implementation issue. At least not yet.
avri
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