Dear Colleagues, I support the relevance and importance of the distinction. A description of this distinction is included in the "problem definition" document currently open for your comments and contributions, sections 3b (review) and 3c (redress). Maybe this discussion could be used to check whether the current wording is agreeable to everyone ?

b._Review mechanisms_

The group considers review mechanisms to be mechanisms that assess the performance and relevance of processes or structures, and provide recommendations (binding or not binding) for improvement.

Examples include:

-Periodic structural reviews of SOs and ACs (as currently mandated in the ICANN Bylaws)

-AoC-mandated ICANN organizational reviews for Accountability and Transparency; Security, Stability, and Resiliency; WHOIS; and Competition and Consumer Trust.

c._Redress mechanisms_

The group defines redress mechanisms as mechanisms that focus on assessing the compliance or relevance of a certain decision, and can conclude to its confirmation, cancellation or amendment. The output of such mechanism shall be binding.

Examples include:

-Independent Review (if it is considered to be binding)

-State of California or jurisdictions where ICANN has a presence Court decisions

May I also seize the opportunity to remind you all that your edits and suggestions are welcome on the rest of the document as well ? Best Mathieu Le 08/01/2015 22:44, Bruce Tonkin a écrit :

Hello Paul,

...

...

. For me, the difference between "review" (i.e. recommendations) and "judicial/arbitral function" (i.e. binding decision that mandates implementation) is key.

Agreed. That is an important distinction.

Regards, Bruce Tonkin

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-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

Dear Mathieu, Further to my previous message, I wish to make some comments to your covering message For ease of refernce, I have copied your message below and comment on that pargraph by paragraph as follows: *General Comments from Kavouss * *Dear Mathieu , dear all,* *There is conceptual problem in this other message referring to the two terms "Review Mechanism "and "Redress Mechanism"..The legal difficulties and 8or problem is that you have tzaken these two Mechanism as alternative to each other where as they are complementary in the consecutive order i.e. the **"Review Mechanism " is a prerequisite mechamism based on its outcome ( suhggestions, recommendatioons,conclusions ) the "Redress Mechanism" would be unsed to redress those elements which have been identified by the Review Process.* *If an enterprise, an organisation, or a company decides to verfy whther the course of action taken complies with the terms and conditions ( charter ,convention, charter, constitution, covenant ....) based on which that enterprise, organisation, or company is/ was established .It would first review the process and based on the outcome of the review the shortcoming, inconsistencies, defficiencies ,problems are identified ,Then through the **redress **process those **shortcoming, inconsistencies, defficiencies ,problems are corrected .* *Dear Colleagues, I support the relevance and importance of the distinction. A description of this distinction is included in the "problem definition" document currently open for your comments and contributions, sections 3b (review) and 3c (redress). Maybe this discussion could be used to check whether the current wording is agreeable to everyone ? * *b. Review mechanisms* *The group considers review mechanisms to be mechanisms that assess the performance and relevance of processes or structures, and provide recommendations (binding or not binding) for improvement. * *Examples include: * Comments from Kavouss 1.The outcome from the review mechanism is never binding due to the legal connotation of the Term " Review" . Review is review has always had optional character and never has been binding *- Periodic structural reviews of SOs and ACs (as currently mandated in the ICANN Bylaws)* *- AoC-mandated ICANN organizational reviews for Accountability and Transparency; Security, Stability, and Resiliency; WHOIS; and Competition and Consumer Trust.* Comments from Kavouss 2. You have referred to *Periodic structural reviews of SOs and ACs (as currently mandated in the ICANN Bylaws.*But this is valid in regard with present structure which is based on terms and conditions of AoC Bylaws, Article of corporation where as the future structure may be totally different *c. Redress mechanisms* *The group defines redress mechanisms as mechanisms that focus on assessing the compliance or relevance of a certain decision, and can conclude to its confirmation, cancellation or amendment. The output of such mechanism shall be binding. * *Examples include: * *- Independent Review (if it is considered to be binding)* *- State of California or jurisdictions where ICANN has a presence Court décisions* *Comments from Kavouss * *With respect to the first indent ,as I explained Under general comments redressing process has always been mandatory and binding since without that how the **inconsistencies, defficiencies ,problems are identified Under the review process are redressed if the process was not mandatory / binding .* *In view of the above, there is a need to clarify the matter.* *I guess people are thinking of Review process similar to ATRT process which is totally optional in the implementation . That does not work .If you take that path there would be no accountability at all.* *Moreover, As I have already indicated you need to make a clear distinction between the Policy, Policy making and Policy implementing entities and processes.* *I do not uinderstand why we always by passed that important process .* *I have made such suggestions several times but the two ch chairs have ignored that to be included in the agenda* *The question is are we make evry possible effrort to maintain the existing process which is not acutally accountable to any one but on certain cases is accountable to NTIA or* *We need to establish the separation of process and responsibilty through an appropriate mechanism having two steps" Review "and the "Redress " the former is essential to be done periodically while the outcome once considered under the latter process" Redress " is mandatory .* *Then we need to describe* *Who is the Policy making entity* *Who is the Policy implementing entity* *And what are the terms . conditions, provisions and content of Policy .* *Thes should be clarified.* *Regards* *Kavouss * 2015-01-09 14:17 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:

Dear Mathieu Dear All, I have several comments and one major problem in misconception and misunderstanding propagated by the author of these issues which has led and would further lead to a total misleading of the two terms " Review" and " redress" I will revert to you later Kavouss

Sent from my iPhone

On 9 Jan 2015, at 10:10, Mathieu Weill <mathieu.weill@afnic.fr> wrote:

Dear Colleagues,

I support the relevance and importance of the distinction. A description of this distinction is included in the "problem definition" document currently open for your comments and contributions, sections 3b (review) and 3c (redress).

Maybe this discussion could be used to check whether the current wording is agreeable to everyone ?

b. *Review mechanisms*

The group considers review mechanisms to be mechanisms that assess the performance and relevance of processes or structures, and provide recommendations (binding or not binding) for improvement.

Examples include:

- Periodic structural reviews of SOs and ACs (as currently mandated in the ICANN Bylaws)

- AoC-mandated ICANN organizational reviews for Accountability and Transparency; Security, Stability, and Resiliency; WHOIS; and Competition and Consumer Trust.

c. *Redress mechanisms*

The group defines redress mechanisms as mechanisms that focus on assessing the compliance or relevance of a certain decision, and can conclude to its confirmation, cancellation or amendment. The output of such mechanism shall be binding.

Examples include:

- Independent Review (if it is considered to be binding)

- State of California or jurisdictions where ICANN has a presence Court decisions

May I also seize the opportunity to remind you all that your edits and suggestions are welcome on the rest of the document as well ?

Best Mathieu

Le 08/01/2015 22:44, Bruce Tonkin a écrit :

Hello Paul,

. For me, the difference between "review" (i.e. recommendations) and "judicial/arbitral function" (i.e. binding decision that mandates implementation) is key.

Agreed. That is an important distinction.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community

-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************

<20140105 CCWG Accountability - problem definition - strawman -coChairs.pdf>

<20140105 CCWG Accountability - problem definition - strawman -prefinal.docx>

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hi, Reviewing and fixing this situation was a strong part of the intent behind the ATRT2 recommendation 9.2 " Explore Options for Restructuring Current Review Mechanisms" ATRT2 did not recommend specific fixes, but recommended that the ICANN community figure out how to fix this by establishing a Special community Group. The Boaard did agree to this recommendation. This was before the IANA transition was announced. The CCWG seems to have such a mandate. One could argue that the CCWG-Accountabity is indeed a special community group. Part of that recommendation included reviewing "the 2012 Report of the Accountability Structures Expert Panel (ASEP) as one basis for its discussions." Is that something perhaps this group should take a look at as port of the work flow? avri On 08-Jan-15 10:19, Burr, Becky wrote:

This gets to the heart of the matter.

The standard is critical. Unfortunately the standard as amended by the ICANN board a couple of years ago gutted meaningful accountability - because the standard is nothing more than good faith and (on its face) permits no real review of whether or not the substantive rules were actually followed. Sadly, it did not even accomplish its ostensible purpose of curbing abuse of the process.

The standard needs to be fixed to provide real accountability, better tools are needed to resolve abusive cases, and the board's ability to modify that standard needs to be limited. To address the kind of inconsistency and subjectivity in the decisions of new gTLD review panels, we should have a fixed group of independent panelist appointed for fixed terms and terminable only for specified bad behavior.

If ICANN's obligation are clearly articulated in a compact that cannot be changed on a whim, the standard of review reflects that commitment, a truly independent judiciary is created to apply it, and the costs of invoking independent review permit meaningful access to those who are truly harmed, then most of my fundamental concerns about accountability would be addressed. But the current independent review is not fit for purpose,

I think the question of whether the decisions are binding or not is far less important than the standard and the presence of a dedicated group of jurists to create consistency and precedent. If I was a member of the ICANN board I would want the decisions to be binding - and I think the claims that California law preclude this are pretty thin. But if the decisions have sufficient moral authority that may be enough.

Sent from my iPad

...

On Jan 8, 2015, at 2:56 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Paul,

...

...

And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation.

For example the current independent review process identified in the bylaws states :

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...

1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws.

2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Also:

"Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on:

a. did the Board act without conflict of interest in taking its decision?;

b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and

c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"

The Independent Review Process Panel shall have the authority to:

"a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious;

b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties;

c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and

d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP;

e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and

f. determine the timing for each proceeding."

The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review".

The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update the bylaws could be updated.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...

---

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hi, Acknowledged. Was not saying it was necessary and sufficient just necessary. It does lay out some worthwhile content. ATRT2 treated it as a starting place and work not to be ignored. There have also been other accountability studies done of ICANN over the years, such as the One World Trust independent review of 2007, that are probably also worth including as background to the discussions. avri On 08-Jan-15 13:33, Burr, Becky wrote:

Avri -

Reviewing the ASEP recommendations is necessary but not sufficient. The registry SG noted that their efforts were a great start but that the constraints (time and resource) imposed by ICANN undermined their work product.

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 <mailto:becky.burr@neustar.biz> / www.neustar.biz

From: Avri Doria <avri@acm.org <mailto:avri@acm.org>> Date: Thursday, January 8, 2015 at 11:59 AM To: Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-Accountability] judicial/arbitral function

Hi,

Reviewing and fixing this situation was a strong part of the intent behind the ATRT2 recommendation 9.2 " Explore Options for Restructuring Current Review Mechanisms"

ATRT2 did not recommend specific fixes, but recommended that the ICANN community figure out how to fix this by establishing a Special community Group. The Boaard did agree to this recommendation. This was before the IANA transition was announced.

The CCWG seems to have such a mandate. One could argue that the CCWG-Accountabity is indeed a special community group.

Part of that recommendation included reviewing "the 2012 Report of the Accountability Structures Expert Panel (ASEP) as one basis for its discussions." Is that something perhaps this group should take a look at as port of the work flow?

avri

On 08-Jan-15 10:19, Burr, Becky wrote:

...

This gets to the heart of the matter.

The standard is critical. Unfortunately the standard as amended by the ICANN board a couple of years ago gutted meaningful accountability - because the standard is nothing more than good faith and (on its face) permits no real review of whether or not the substantive rules were actually followed. Sadly, it did not even accomplish its ostensible purpose of curbing abuse of the process.

The standard needs to be fixed to provide real accountability, better tools are needed to resolve abusive cases, and the board's ability to modify that standard needs to be limited. To address the kind of inconsistency and subjectivity in the decisions of new gTLD review panels, we should have a fixed group of independent panelist appointed for fixed terms and terminable only for specified bad behavior.

If ICANN's obligation are clearly articulated in a compact that cannot be changed on a whim, the standard of review reflects that commitment, a truly independent judiciary is created to apply it, and the costs of invoking independent review permit meaningful access to those who are truly harmed, then most of my fundamental concerns about accountability would be addressed. But the current independent review is not fit for purpose,

I think the question of whether the decisions are binding or not is far less important than the standard and the presence of a dedicated group of jurists to create consistency and precedent. If I was a member of the ICANN board I would want the decisions to be binding - and I think the claims that California law preclude this are pretty thin. But if the decisions have sufficient moral authority that may be enough.

Sent from my iPad

...

On Jan 8, 2015, at 2:56 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Paul,

...

...

And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation.

For example the current independent review process identified in the bylaws states :

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...

1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws.

2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Also:

"Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on:

a. did the Board act without conflict of interest in taking its decision?;

b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and

c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"

The Independent Review Process Panel shall have the authority to:

"a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious;

b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties;

c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and

d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP;

e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and

f. determine the timing for each proceeding."

The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review".

The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update the bylaws could be updated.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.orghttps://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...

---

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community

Hi All, In addition to the report Avri mentions below (available here <https://www.icann.org/en/system/files/files/owt-report-final-2007-en.pdf>, One World Trust also produced a report in February 2014 that may be helpful to our work "ICANN Accountability and Transparency Metrics and Benchmarks" <https://www.icann.org/en/system/files/files/benchmarks-consultancy-28feb14- en.pdf> The report covers, among other topics, an introduction to accountability principles used by 4 international initiatives: The Global Accountability Framework II (One World Trust); Code of Ethics for NGOs (World Association of NGOs); INGO Accountability Charter (INGO Charter Company); The 2010 HAP Standard in Accountability and Quality Management (Humanitarian Accountability Partnership). And a comparison of ICANN's accountability practices with three other somewhat similar organizations: World Fair Trade Organisation (WFTO), Forestry Stewardship Council (FSC) and the International Organisation for Standardization (ISO). As yet this work hasn't been widely discussed. Staff can provide more information if that would be helpful. Best, Adam From: Avri Doria <avri@acm.org> Date: Friday, January 9, 2015 at 3:47 AM To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] judicial/arbitral function Hi, Acknowledged. Was not saying it was necessary and sufficient just necessary. It does lay out some worthwhile content. ATRT2 treated it as a starting place and work not to be ignored. There have also been other accountability studies done of ICANN over the years, such as the One World Trust independent review of 2007, that are probably also worth including as background to the discussions. avri On 08-Jan-15 13:33, Burr, Becky wrote:

Avri -

Reviewing the ASEP recommendations is necessary but not sufficient. The registry SG noted that their efforts were a great start but that the constraints (time and resource) imposed by ICANN undermined their work product.

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 <http://www.neustar.biz>

From: Avri Doria <avri@acm.org> Date: Thursday, January 8, 2015 at 11:59 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] judicial/arbitral function

Hi,

Reviewing and fixing this situation was a strong part of the intent behind the ATRT2 recommendation 9.2 " Explore Options for Restructuring Current Review Mechanisms"

ATRT2 did not recommend specific fixes, but recommended that the ICANN community figure out how to fix this by establishing a Special community Group. The Boaard did agree to this recommendation. This was before the IANA transition was announced.

The CCWG seems to have such a mandate. One could argue that the CCWG-Accountabity is indeed a special community group.

Part of that recommendation included reviewing "the 2012 Report of the Accountability Structures Expert Panel (ASEP) as one basis for its discussions." Is that something perhaps this group should take a look at as port of the work flow?

avri

On 08-Jan-15 10:19, Burr, Becky wrote:

...

This gets to the heart of the matter.

The standard is critical. Unfortunately the standard as amended by the ICANN board a couple of years ago gutted meaningful accountability - because the standard is nothing more than good faith and (on its face) permits no real review of whether or not the substantive rules were actually followed. Sadly, it did not even accomplish its ostensible purpose of curbing abuse of the process.

The standard needs to be fixed to provide real accountability, better tools are needed to resolve abusive cases, and the board's ability to modify that standard needs to be limited. To address the kind of inconsistency and subjectivity in the decisions of new gTLD review panels, we should have a fixed group of independent panelist appointed for fixed terms and terminable only for specified bad behavior.

If ICANN's obligation are clearly articulated in a compact that cannot be changed on a whim, the standard of review reflects that commitment, a truly independent judiciary is created to apply it, and the costs of invoking independent review permit meaningful access to those who are truly harmed, then most of my fundamental concerns about accountability would be addressed. But the current independent review is not fit for purpose,

I think the question of whether the decisions are binding or not is far less important than the standard and the presence of a dedicated group of jurists to create consistency and precedent. If I was a member of the ICANN board I would want the decisions to be binding - and I think the claims that California law preclude this are pretty thin. But if the decisions have sufficient moral authority that may be enough.

Sent from my iPad

...

On Jan 8, 2015, at 2:56 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> <mailto:Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Paul,

...

...

And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation.

For example the current independent review process identified in the bylaws states :

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources _pages_bylaws-2D2012-2D02-2D25-2Den-23IV&d=AwIFAw&c=MOptNlVtIETeDALC_lULrw&r =62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=bpAVLVQ7xUGsmvBRdWsaGcq3tbh5- VEZ3Ocw2NQS4iA&s=kPYTvvNVUGxPEF7d2uYcu9sAuEGjnTD_o6M0N509uew&e=

1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws.

2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Also:

"Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on:

a. did the Board act without conflict of interest in taking its decision?;

b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and

c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"

The Independent Review Process Panel shall have the authority to:

"a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious;

b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties;

c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and

d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP;

e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and

f. determine the timing for each proceeding."

The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review".

The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update the bylaws could be updated.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.orghttps://urldefense.proofpoint.com/v2 /url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcomm unity&d=AwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP 8WDDkMr4k&m=bpAVLVQ7xUGsmvBRdWsaGcq3tbh5-VEZ3Ocw2NQS4iA&s=zqVJlRhNN_bMbaWh7a qQnb6GzKmw1Vtym1IYB27GVwc&e=

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Adam, Avri, Thank you for those helpful and possibly useful information docs. I am now engaged to study them and come back to you soon. Kavouss 2015-01-11 14:56 GMT+01:00 Carrie <carriedev@gmail.com>:

I was puzzled to read that Jon Postels estate owns ccgtlds.

Will someone explain to me how this can be? Who from Jons estate is on the ICAaN board and explain of the agreement / it's history etc?

Thank you Carrie

Sent from my iPhone

On Jan 11, 2015, at 8:34 AM, Adam Peake <adam.peake@icann.org> wrote:

Hi All,

In addition to the report Avri mentions below (available here < https://www.icann.org/en/system/files/files/owt-report-final-2007-en.pdf>, One World Trust also produced a report in February 2014 that may be helpful to our work "ICANN Accountability and Transparency Metrics and Benchmarks" < https://www.icann.org/en/system/files/files/benchmarks-consultancy-28feb14-e...>

The report covers, among other topics, an introduction to accountability principles used by 4 international initiatives: The Global Accountability Framework II (One World Trust); Code of Ethics for NGOs (World Association of NGOs); INGO Accountability Charter (INGO Charter Company); The 2010 HAP Standard in Accountability and Quality Management (Humanitarian Accountability Partnership).

And a comparison of ICANN's accountability practices with three other somewhat similar organizations: World Fair Trade Organisation (WFTO), Forestry Stewardship Council (FSC) and the International Organisation for Standardization (ISO).

As yet this work hasn't been widely discussed. Staff can provide more information if that would be helpful.

Best,

Adam

From: Avri Doria <avri@acm.org> Date: Friday, January 9, 2015 at 3:47 AM To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] judicial/arbitral function

Hi,

Acknowledged.

Was not saying it was necessary and sufficient just necessary. It does lay out some worthwhile content. ATRT2 treated it as a starting place and work not to be ignored.

There have also been other accountability studies done of ICANN over the years, such as the One World Trust independent review of 2007, that are probably also worth including as background to the discussions.

avri

On 08-Jan-15 13:33, Burr, Becky wrote:

Avri -

Reviewing the ASEP recommendations is necessary but not sufficient. The registry SG noted that their efforts were a great start but that the constraints (time and resource) imposed by ICANN undermined their work product.

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

From: Avri Doria <avri@acm.org> Date: Thursday, January 8, 2015 at 11:59 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] judicial/arbitral function

Hi,

Reviewing and fixing this situation was a strong part of the intent behind the ATRT2 recommendation 9.2 " Explore Options for Restructuring Current Review Mechanisms"

ATRT2 did not recommend specific fixes, but recommended that the ICANN community figure out how to fix this by establishing a Special community Group. The Boaard did agree to this recommendation. This was before the IANA transition was announced.

The CCWG seems to have such a mandate. One could argue that the CCWG-Accountabity is indeed a special community group.

Part of that recommendation included reviewing "the 2012 Report of the Accountability Structures Expert Panel (ASEP) as one basis for its discussions." Is that something perhaps this group should take a look at as port of the work flow?

avri

On 08-Jan-15 10:19, Burr, Becky wrote:

This gets to the heart of the matter.

The standard is critical. Unfortunately the standard as amended by the ICANN board a couple of years ago gutted meaningful accountability - because the standard is nothing more than good faith and (on its face) permits no real review of whether or not the substantive rules were actually followed. Sadly, it did not even accomplish its ostensible purpose of curbing abuse of the process.

The standard needs to be fixed to provide real accountability, better tools are needed to resolve abusive cases, and the board's ability to modify that standard needs to be limited. To address the kind of inconsistency and subjectivity in the decisions of new gTLD review panels, we should have a fixed group of independent panelist appointed for fixed terms and terminable only for specified bad behavior.

If ICANN's obligation are clearly articulated in a compact that cannot be changed on a whim, the standard of review reflects that commitment, a truly independent judiciary is created to apply it, and the costs of invoking independent review permit meaningful access to those who are truly harmed, then most of my fundamental concerns about accountability would be addressed. But the current independent review is not fit for purpose,

I think the question of whether the decisions are binding or not is far less important than the standard and the presence of a dedicated group of jurists to create consistency and precedent. If I was a member of the ICANN board I would want the decisions to be binding - and I think the claims that California law preclude this are pretty thin. But if the decisions have sufficient moral authority that may be enough.

Sent from my iPad

On Jan 8, 2015, at 2:56 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Paul,

And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing.

Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation.

For example the current independent review process identified in the bylaws states : https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...

1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws.

2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Also:

"Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on:

a. did the Board act without conflict of interest in taking its decision?;

b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and

c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"

The Independent Review Process Panel shall have the authority to:

"a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious;

b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties;

c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and

d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP;

e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and

f. determine the timing for each proceeding."

The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review".

The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update the bylaws could be updated.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...

_______________________________________________ Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>

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Dear all, Both reports have been uploaded to the Wiki here: https://community.icann.org/display/acctcrosscomm/Group+Uploaded+Resources From: Adam Peake <adam.peake@icann.org> Date: Sunday, January 11, 2015 8:34 AM To: Avri Doria <avri@acm.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] judicial/arbitral function Hi All, In addition to the report Avri mentions below (available here <https://www.icann.org/en/system/files/files/owt-report-final-2007-en.pdf>, One World Trust also produced a report in February 2014 that may be helpful to our work "ICANN Accountability and Transparency Metrics and Benchmarks" <https://www.icann.org/en/system/files/files/benchmarks-consultancy-28feb14- en.pdf> The report covers, among other topics, an introduction to accountability principles used by 4 international initiatives: The Global Accountability Framework II (One World Trust); Code of Ethics for NGOs (World Association of NGOs); INGO Accountability Charter (INGO Charter Company); The 2010 HAP Standard in Accountability and Quality Management (Humanitarian Accountability Partnership). And a comparison of ICANN's accountability practices with three other somewhat similar organizations: World Fair Trade Organisation (WFTO), Forestry Stewardship Council (FSC) and the International Organisation for Standardization (ISO). As yet this work hasn't been widely discussed. Staff can provide more information if that would be helpful. Best, Adam From: Avri Doria <avri@acm.org> Date: Friday, January 9, 2015 at 3:47 AM To: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] judicial/arbitral function Hi, Acknowledged. Was not saying it was necessary and sufficient just necessary. It does lay out some worthwhile content. ATRT2 treated it as a starting place and work not to be ignored. There have also been other accountability studies done of ICANN over the years, such as the One World Trust independent review of 2007, that are probably also worth including as background to the discussions. avri On 08-Jan-15 13:33, Burr, Becky wrote:

Avri -

Reviewing the ASEP recommendations is necessary but not sufficient. The registry SG noted that their efforts were a great start but that the constraints (time and resource) imposed by ICANN undermined their work product.

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 <http://www.neustar.biz>

From: Avri Doria <avri@acm.org> Date: Thursday, January 8, 2015 at 11:59 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] judicial/arbitral function

Hi,

Reviewing and fixing this situation was a strong part of the intent behind the ATRT2 recommendation 9.2 " Explore Options for Restructuring Current Review Mechanisms"

ATRT2 did not recommend specific fixes, but recommended that the ICANN community figure out how to fix this by establishing a Special community Group. The Boaard did agree to this recommendation. This was before the IANA transition was announced.

The CCWG seems to have such a mandate. One could argue that the CCWG-Accountabity is indeed a special community group.

Part of that recommendation included reviewing "the 2012 Report of the Accountability Structures Expert Panel (ASEP) as one basis for its discussions." Is that something perhaps this group should take a look at as port of the work flow?

avri

On 08-Jan-15 10:19, Burr, Becky wrote:

...

This gets to the heart of the matter.

The standard is critical. Unfortunately the standard as amended by the ICANN board a couple of years ago gutted meaningful accountability - because the standard is nothing more than good faith and (on its face) permits no real review of whether or not the substantive rules were actually followed. Sadly, it did not even accomplish its ostensible purpose of curbing abuse of the process.

The standard needs to be fixed to provide real accountability, better tools are needed to resolve abusive cases, and the board's ability to modify that standard needs to be limited. To address the kind of inconsistency and subjectivity in the decisions of new gTLD review panels, we should have a fixed group of independent panelist appointed for fixed terms and terminable only for specified bad behavior.

If ICANN's obligation are clearly articulated in a compact that cannot be changed on a whim, the standard of review reflects that commitment, a truly independent judiciary is created to apply it, and the costs of invoking independent review permit meaningful access to those who are truly harmed, then most of my fundamental concerns about accountability would be addressed. But the current independent review is not fit for purpose,

I think the question of whether the decisions are binding or not is far less important than the standard and the presence of a dedicated group of jurists to create consistency and precedent. If I was a member of the ICANN board I would want the decisions to be binding - and I think the claims that California law preclude this are pretty thin. But if the decisions have sufficient moral authority that may be enough.

Sent from my iPad

...

On Jan 8, 2015, at 2:56 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> <mailto:Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Paul,

...

...

And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation.

For example the current independent review process identified in the bylaws states :

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources _pages_bylaws-2D2012-2D02-2D25-2Den-23IV&d=AwIFAw&c=MOptNlVtIETeDALC_lULrw&r =62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=bpAVLVQ7xUGsmvBRdWsaGcq3tbh5- VEZ3Ocw2NQS4iA&s=kPYTvvNVUGxPEF7d2uYcu9sAuEGjnTD_o6M0N509uew&e=

1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws.

2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Also:

"Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on:

a. did the Board act without conflict of interest in taking its decision?;

b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and

c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"

The Independent Review Process Panel shall have the authority to:

"a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious;

b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties;

c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and

d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP;

e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and

f. determine the timing for each proceeding."

The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review".

The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update the bylaws could be updated.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.orghttps://urldefense.proofpoint.com/v2 /url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcomm unity&d=AwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP 8WDDkMr4k&m=bpAVLVQ7xUGsmvBRdWsaGcq3tbh5-VEZ3Ocw2NQS4iA&s=zqVJlRhNN_bMbaWh7a qQnb6GzKmw1Vtym1IYB27GVwc&e=

---

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo /accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li stinfo_accountability-2Dcross-2Dcommunity&d=AwMD-g&c=MOptNlVtIETeDALC_lULrw&r =62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=z2jZbvTCexCXWlVLl8MOgC6fascFJr AUY9eS8OP7yzY&s=g1rGVotCWo07hdGFH4B_urxckXelHjPv9DxeOzx7Kxo&e=>

To confirm, there was public comment received on the Bylaws amendments: https://www.icann.org/resources/pages/asep-recommendations-2012-10-26-en Best, Sam __ Samantha Eisner Associate General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631 From: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Date: Thursday, January 8, 2015 at 7:53 AM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-Accountability] judicial/arbitral function Noncommercial users have also been critical of the quiet change of the standard to win an IRP. It was a rather odd move, for the standard used to decide if a board member can be personally liable for bad decisions to then be used to decide whether the organization has to follow its articles or bylaws at all. Wow - talk about a stretch! (Was there a comment period on that bylaws change?) I agree that this standard must be brought back in line with reality. Another issue is the excessive costs a party must put forth in order to proceed with an IRP. Ponying up a million dollars to pay for the Jones Day lawyers' work just isn't something that 99% of the world can do. Noncommercial users couldn't fund it when there was a clear violation of the organization's bylaws regarding the TM+50 policy. As it currently sits, the IRP is a way to avoid accountability - not achieve it. Robin On Jan 8, 2015, at 2:54 AM, Bruce Tonkin wrote: Hello Paul, And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing. Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation. For example the current independent review process identified in the bylaws states : https://www.icann.org/resources/pages/bylaws-2012-02-25-en#IV 1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws. 2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action." Also: "Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on: a. did the Board act without conflict of interest in taking its decision?; b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?" The Independent Review Process Panel shall have the authority to: "a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious; b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties; c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP; e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and f. determine the timing for each proceeding." The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review". The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update the bylaws could be updated. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Thanks for the pointer. Looking at the staff analysis of the 2 comments submitted, one can see where a miscommunication may have came from. In response the RySG's concern about inappropriately heightening the standard of review for decisions, the staff analysis implies that decisions taken in violation of Articles or Bylaws wouldn't be part of this new standard of review. But they are. All the matters before the IRP are evaluated at the malfeasance level including matters regarding decisions taken in violation of the Articles and Bylaws. So there seemed to be a misunderstanding as how this standard would apply in the analysis provided to justify its adoption. Perhaps this observation could be helpful as we try to come up with solutions going forward. Best, Robin Staff Analysis: "...After review of the comments in coordination with the ASEP, in response to the RySG, it is important to note that the imposition of a standard of review into the Independent Review process assures that the process will be used for review, and not for a rehearing. There is a need for Board decisions to be able to be relied upon and implemented, unless there is the type of failure identified by the ASEP (decision taken in violation of the Articles of Incorporation or Bylaws, or with a conflict of interest, or not believed to be in the best interests of the organization)..." On Jan 8, 2015, at 10:59 AM, Samantha Eisner wrote:

To confirm, there was public comment received on the Bylaws amendments: https://www.icann.org/resources/pages/asep-recommendations-2012-10-26-en

Best,

Sam __ Samantha Eisner Associate General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631

From: Robin Gross <robin@ipjustice.org> Date: Thursday, January 8, 2015 at 7:53 AM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] judicial/arbitral function

Noncommercial users have also been critical of the quiet change of the standard to win an IRP. It was a rather odd move, for the standard used to decide if a board member can be personally liable for bad decisions to then be used to decide whether the organization has to follow its articles or bylaws at all. Wow - talk about a stretch! (Was there a comment period on that bylaws change?)

I agree that this standard must be brought back in line with reality. Another issue is the excessive costs a party must put forth in order to proceed with an IRP. Ponying up a million dollars to pay for the Jones Day lawyers' work just isn't something that 99% of the world can do. Noncommercial users couldn't fund it when there was a clear violation of the organization's bylaws regarding the TM+50 policy. As it currently sits, the IRP is a way to avoid accountability - not achieve it.

Robin

On Jan 8, 2015, at 2:54 AM, Bruce Tonkin wrote:

...

Hello Paul,

...

...

And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing.

Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation.

For example the current independent review process identified in the bylaws states :

https://www.icann.org/resources/pages/bylaws-2012-02-25-en#IV

1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws.

2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Also:

"Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on:

a. did the Board act without conflict of interest in taking its decision?;

b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and

c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"

The Independent Review Process Panel shall have the authority to:

"a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious;

b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties;

c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and

d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP;

e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and

f. determine the timing for each proceeding."

The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review".

The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update the bylaws could be updated.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community