Hello Edward,
One negative aspect of the California Corporations Code in this regard is the possibility of a bond of up to $50,000 being required by the court to pursue a derivative action (California Corporations Code §5710 ). This highlights an issue we are going to have to face in constructing an effective accountability scheme: affordability. Our current accountability structure falls flat in this area, with access to an IRP being effectively denied to those without extensive resources. This limits the ability of small businesses, nonprofits and many individual registrants to hold ICANN accountable for it's actions. We need to do better in this area as we transform ICANN into a true model of accountable corporate governance and, working together, I'm sure we will.
Yes – cost is certainly an issue. This was of concern to the Board after the .xxx process, and some of the changes to the process were intended to reduce the costs to both parties in the dispute. There were a couple of ideas that were tried in the new gTLD dispute process: (1) Was the idea of an independent objector From: http://newgtlds.icann.org/en/applicants/agb/objection-procedures-04jun12-en.... The budget for the independent objector included: “Budget and Funding – The IO’s budget would comprise two principal elements: (a) salaries and operating expenses, and (b) dispute resolution procedure costs – both of which should be funded from the proceeds of new gTLD applications. As an objector in dispute resolution proceedings, the IO is required to pay filing and administrative fees, as well as advance payment of costs, just as all other objectors are required to do. Those payments will be refunded by the DRSP in cases where the IO is the prevailing party. In addition, the IO will incur various expenses in presenting objections before DRSP panels that will not be refunded, regardless of the outcome. These expenses include the fees and expenses of outside counsel (if retained) and the costs of legal research or factual investigations.” (2) Allowance was made to cover the costs of ALAC or an individual government filing an objection " Funding from ICANN for objection filing fees, as well as for advance payment of costs (see subsection 3.4.7 below) is available to the At-Large Advisory Committee (ALAC). Funding for ALAC objection filing and dispute resolution fees is contingent on publication by ALAC of its approved process for considering and making objections. At a minimum, the process for objecting to a gTLD application will require: bottom-up development of potential objections, discussion and approval of objections at the Regional At-Large Organization (RALO) level, and a process for consideration and approval of the objection by the At-Large Advisory Committee. Funding from ICANN for objection filing fees, as well as for advance payment of costs, is available to individual national governments in the amount of USD 50,000 with the guarantee that a minimum of one objection per government will be fully funded by ICANN where requested. ICANN will develop a procedure for application and disbursement of funds." The CCWG may give consideration to similar funding mechanisms where a bottom-up community process is used to formally file an objection under an accountability mechanism related to whether ICANN has followed its bylaws etc. Like any of these mechanisms I think there needs to be reasonable threshold before effectively the community should be paying the costs of an objection. Regards, Bruce Tonkin