I feel compelled to point out that the independent panel was interpreting the entirety of the rules of proceedings to which it was subject - it did not simply elect to ignore the provision regarding live witnesses. And frankly, the IRP operating rules were changed by staff and without Board approval several times in anticipation of and in response to the ICM arbitration. ICANN staff and I have long disagreed about the need/Bylaws requirement for Board approval of material changes to the IRP procedures. But the bigger point is, I¹m hard pressed to say that very much about the current IRP procedures were ³agreed by the community.² J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz On 9/23/15, 5:42 AM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Anne,
Interestingly, the ICANN Board complied with the Panel's Order for live witnesses at the hearing. Does this mean they actually did violate the ICANN ByLaws by doing so? I guess it is pretty easy to see how the Board can get caught "between a rock and hard place" in certain situations. (U.S. slang cultural reference to no good alternative).
We took the view that this was a direction of the independent panel, and that the complainant had also agreed to participate in a live hearing. The panel was of the view that for a new gTLD applicant - this was their final recourse and that a full heavy weight court style of procedure was appropriate (although expensive for all parties).
One thing to think about though going forward is what to do if an "independent" panel doesn¹t follow the updated rules of procedure for IRP proceedings. When appointing an independent panel to make binding decisions - I think it is also important to ensure that the panel is also held accountable to whatever rules of procedure are agreed by the community.
Regards,
Bruce Tonkin
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