That’s exactly right, David, and what we just saw in the IRP brought by Booking.com over the finding that .Hotels and .Hoteis were in the same new gTLD contention set

 

The available accountability mechanisms were restricted to reviewing whether proper procedure had been observed, but could not reach the admittedly questionable merits of the original decision that found them confusingly similar at the gTLD level.

 

So when should the merits of a Board decision be susceptible to modification or reversal, who has standing to bring such a challenge, and what should be the standard of review? Important questions, and not easy to answer.

 

Philip S. Corwin, Founding Principal

Virtualaw LLC

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Twitter: @VlawDC

 

"Luck is the residue of design" -- Branch Rickey

 

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post
Sent: Sunday, March 15, 2015 9:26 AM
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"

 

At 08:16 PM 3/14/2015, Bruce Tonkin wrote:

Under its Articles of Incorporation ICANN already operates “for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.”   See: https://www.icann.org/en/about/governance/articles

The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws.

[SNIP]


Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws.  See Bylaws, Art IV sec 3(4):

"The IRP Panel must apply a defined standard of review to the IRP request, focusing on:

    1. did the Board act without conflict of interest in taking its decision?;
    2. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and
    3. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"

That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example.

David

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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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