The important issue arising is in 2 parts. Accountability and a general sense is already being fully discussed. However the more difficult issue is designing a dispute resolution system which has the flexibility to discuss the issues graphically illustrated by this case. Do we want to set up a quasi-judicial system within ICANN with a level of review or appeal? Should we try and harmonise all of the existing review systems so that there is a common procedure and a review/appeal level? There are many ad hoc panels, some barely used and others heavily used. One of the purposes of such a quasi-judicial tribunal/appeal system is that there are independent arbitrators/review panels who can make objective decisions, as I suspect the Independent Review Panel wanted, in the .hotel case. I don't think this has been greatly discussed so far. Chris LaHatte Ombudsman Blog  https://omblog.icann.org/ Webpage http://www.icann.org/en/help/ombudsman -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Wednesday, March 04, 2015 4:55 PM To: Phil Corwin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP It is also significant in that the panel actually shares a lot of the concerns expressed by the challenging party, but was powerless to do anything because of the extremely limited mandate of the IRP. This again demonstrates the significance of the changes that were put in by the icann staff and board "in the middle of the night" after the ICM decision when few people other than the registries were paying attention (and ignored). This accountability group must put back in place reasonable mechanisms that do not leave impacted parties powerless to get relief especially where a panel, like the one here, shares the concerns expressed by the challenger. Sent from my iPad

On Mar 3, 2015, at 10:39 PM, Phil Corwin <psc@vlaw-dc.com> wrote:

I have not had a chance to review the entire 50-page document, but the heart of the decision is at the Conclusion, Sections 141-147 on pp.42-43. (decision attached)

The panel states that the limited nature of the current IRP means that any complainant faces an “uphill battle” and “significant obstavles.> That is especially true where, as here, the adopted policies and procedures are followed, with no available recourse to contesting the soundness of those policies and procedures.

The decision is a good example of the bounds of the current system. The question is to what extent new accountability measures should make challenges to Board actions less of an uphill battle, or provide a basis for challenging the underlying policies and procedures.

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell

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 Samantha Eisner Sent: Tuesday, March 03, 2015 10:06 PM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP

ICANN received today the final declaration in the independent review proceeding filed by Booking.com<http://Booking.com>. The declaration can be found at https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf .

Best,

Samantha ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 <ICANN-ACCT-Bookingdotcom_IRP-final-declaration-03mar15-en.pdf> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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

An appeal or review process that is limited to challenging procedural and process errors, and that leaves no recourse to challenge the merits of a decision, or the merits of the policies and procedures used to arrive at that decision, is so narrowly cast as to be worthless in the vast majority of cases. The fact that it is used as often as it is speaks much more to the importance of the decisions and to the desperate desire of the community for recourse than it does to the value of the review mechanism itself. It's like drinking from a muddy, stream when you're thirsty -- you drink in hope of satisfaction but end up no better than when you started (or worse, if you count the time, money and resources expended (or the e. coli in the stream). I wouldn't go so far as to say it was "designed to support whatever decision is made by the staff and Board, irrespective of whether that is a good decision or not," That's a phrasing that seems to ascribe ill intent, which i think is an exercise too often engaged in within this community and less often correct than those that indulge in it think. I think it is enough to say that it was not intended to allow any challenge to a decision on the merits, so whether a decision is good or bad is irrelevant to this mechanism. If the community wants a mechanism that goes directly to the merits of a decision (as opposed to "back door" challenges to procedure), this ain't it. If the community wants a mechanism that goes directly to the merits of a decision, then it's up to this group at this time to push forward toward that goal. Greg On Tue, Mar 3, 2015 at 11:35 PM, Kieren McCarthy <kierenmccarthy@gmail.com> wrote:

So I've just read it all.

My take away is what I believe many of us are already aware of: that the current accountability systems are designed to support whatever decision is made by the staff and Board, irrespective of whether that is a good decision or not.

In other words, the accountability mechanisms provide no way to force a reversal of a decision even when Board members and the review panel itself think the wrong conclusion had been reached.

For real accountability - rather than long expensive and largely pointless processes - there need to be mechanisms in which the decision itself can be questioned, in which staff can be found to have withheld useful information and held to account for that, in which ICANN corporate is not pitched against an applicant, and in which the people carrying out the review don't have to say "it sucks but there's nothing we can do about it".

Kieren

- [sent through phone]

On Tue, Mar 3, 2015 at 7:38 PM, Phil Corwin <psc@vlaw-dc.com> wrote:

...

I have not had a chance to review the entire 50-page document, but the heart of the decision is at the Conclusion, Sections 141-147 on pp.42-43. (decision attached)

The panel states that the limited nature of the current IRP means that any complainant faces an “uphill battle” and “significant obstavles.> That is especially true where, as here, the adopted policies and procedures are followed, with no available recourse to contesting the soundness of those policies and procedures.

The decision is a good example of the bounds of the current system. The question is to what extent new accountability measures should make challenges to Board actions less of an uphill battle, or provide a basis for challenging the underlying policies and procedures.

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597 <202-559-8597>/Direct*

*202-559-8750 <202-559-8750>/Fax*

*202-255-6172 <202-255-6172>/cell*

*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 *Samantha Eisner *Sent:* Tuesday, March 03, 2015 10:06 PM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP

ICANN received today the final declaration in the independent review proceeding filed by Booking.com. The declaration can be found at https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf.

Best,

Samantha

------------------------------

No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15

<ICANN-ACCT-Bookingdotcom_IRP-final-declaration-03mar15-en.pdf>

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

-- *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>*

Hello Chris,

...

And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case? 

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

I could see how this could be built into a future new gTLD process. e.g the String Similarity panel could first identify strings that are potentially confusing and should be in a contention set - e.g. .hotels and .hoteis. Then a separate panel could be convened (perhaps with three panellists) to consider the case on its merits taking submissions from both parties and any other interested members of the global public. Another common scenario we have seen is where third parties (ie non-applicants, and not ccTLD managers or gTLD operators) have disputed that two strings should have been found as similar but were not - e.g. .car and .cars. Again such a situation could perhaps be appealed to a larger panel to consider on its merits - I would assume those bringing the dispute would have some standing to raise the issue - e.g. perhaps the Car Industry etc. - on the basis that they could be materially affected by having the two strings. I think it is important to remember that this was a major program that was rolled out and there are lots of learnings. Part of being accountable is to address those short-comings in the next release of the process. We have been very careful about changing the rules of the process while it is underway. It is not that dissimilar to planning processes for building approvals etc. When a new area of a city is released for development - the rules may need to be changed to prevent undesirable developments that were not originally foreseen (e.g. buildings too tall, or buildings not fireproof, earthquake proof etc). However the changes need to be made through a community consultation process - rather than the Board imposing new or changed rules along the way. I think we are all keen to see the processes and appeal mechanisms improved. I have personally spent many hours reviewing reconsideration requests. As a general rule for every loser in the panel and dispute process - this has resulted in reconsideration as the cost to reconsider versus the cost to apply for a new gTLD was very low. In quite a few of those you could see fairly clearly that the right decision had been made on its merits, and in other cases I could see how a different panel might make a different decision on its merits. Most of the reconsideration requests spend most of their submission arguing the merits of their original case - and few have been able to identify errors in the process. Regards, Bruce Tonkin

Reviewing the comments made in this email thread, I refer in particular to Chris LaHatte's comment, posted below. I think he is right, we need to establish a dispute resolution system that values each case based on its individual parameters - keeping international law parameters and DNS specific legal parameters into consideration. My idea always was to 'copy' the WTO dispute settlement procedure. It is sufficient flexible, keeps involved complainants and third party interests in balance and it must respect global public interest parameters as well. I have 15 years experience in this area, happy to help. Erika (From Chris LaHatte) "Accountability and a general sense is already being fully discussed. However the more difficult issue is designing a dispute resolution system which has the flexibility to discuss the issues graphically illustrated by this case. Do we want to set up a quasi-judicial system within ICANN with a level of review or appeal? Should we try and harmonise all of the existing review systems so that there is a common procedure and a review/appeal level?" On Wed, Mar 4, 2015 at 7:54 AM, Chris Disspain <ceo@auda.org.au> wrote:

Hi Bruce,

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

Absolutely. And if you’re correct then the review would be of the merits of an independent panel decision. Whilst such a review mechanism seems equitable to me I think the key point is that this would need to be built in to a future new gTLD process, presumably arising from policy review and recommendations of the gNSO. Thus, I’m unsure that the real issue in this case can be solved by the work of the CCWG.

I think we are all keen to see the processes and appeal mechanisms improved.

100% agree. And that is work that I think the CCWG can do.

Cheers,

Chris

On 4 Mar 2015, at 17:42 , Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Chris,

And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case?

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

I could see how this could be built into a future new gTLD process.

e.g the String Similarity panel could first identify strings that are potentially confusing and should be in a contention set - e.g. .hotels and .hoteis. Then a separate panel could be convened (perhaps with three panellists) to consider the case on its merits taking submissions from both parties and any other interested members of the global public.

Another common scenario we have seen is where third parties (ie non-applicants, and not ccTLD managers or gTLD operators) have disputed that two strings should have been found as similar but were not - e.g. .car and .cars. Again such a situation could perhaps be appealed to a larger panel to consider on its merits - I would assume those bringing the dispute would have some standing to raise the issue - e.g. perhaps the Car Industry etc. - on the basis that they could be materially affected by having the two strings.

I think it is important to remember that this was a major program that was rolled out and there are lots of learnings. Part of being accountable is to address those short-comings in the next release of the process. We have been very careful about changing the rules of the process while it is underway. It is not that dissimilar to planning processes for building approvals etc. When a new area of a city is released for development - the rules may need to be changed to prevent undesirable developments that were not originally foreseen (e.g. buildings too tall, or buildings not fireproof, earthquake proof etc). However the changes need to be made through a community consultation process - rather than the Board imposing new or changed rules along the way.

I think we are all keen to see the processes and appeal mechanisms improved. I have personally spent many hours reviewing reconsideration requests. As a general rule for every loser in the panel and dispute process - this has resulted in reconsideration as the cost to reconsider versus the cost to apply for a new gTLD was very low. In quite a few of those you could see fairly clearly that the right decision had been made on its merits, and in other cases I could see how a different panel might make a different decision on its merits. Most of the reconsideration requests spend most of their submission arguing the merits of their original case - and few have been able to identify errors in the process.

Regards, Bruce Tonkin

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

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

Avri, Colleagues - Happy to develop a first draft proposal for input/ review based on WTO processes, taken into consideration the ICANN specific obligations and values. Can do a first draft next week. Erika On Wed, Mar 4, 2015 at 9:44 AM, Avri Doria <avri@acm.org> wrote:

Hi,

I think this is an excellent idea and have heard it suggested before. Might be good to have someone lay out the features of the procedure.

avri

On 04-Mar-15 08:54, Erika Mann wrote:

Reviewing the comments made in this email thread, I refer in particular to Chris LaHatte's comment, posted below. I think he is right, we need to establish a dispute resolution system that values each case based on its individual parameters - keeping international law parameters and DNS specific legal parameters into consideration. My idea always was to 'copy' the WTO dispute settlement procedure. It is sufficient flexible, keeps involved complainants and third party interests in balance and it must respect global public interest parameters as well. I have 15 years experience in this area, happy to help. Erika

(From Chris LaHatte) "Accountability and a general sense is already being fully discussed. However the more difficult issue is designing a dispute resolution system which has the flexibility to discuss the issues graphically illustrated by this case. Do we want to set up a quasi-judicial system within ICANN with a level of review or appeal? Should we try and harmonise all of the existing review systems so that there is a common procedure and a review/appeal level?"

On Wed, Mar 4, 2015 at 7:54 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Bruce,

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

Absolutely. And if you’re correct then the review would be of the merits of an independent panel decision. Whilst such a review mechanism seems equitable to me I think the key point is that this would need to be built in to a future new gTLD process, presumably arising from policy review and recommendations of the gNSO. Thus, I’m unsure that the real issue in this case can be solved by the work of the CCWG.

I think we are all keen to see the processes and appeal mechanisms improved.

100% agree. And that is work that I think the CCWG can do.

Cheers,

Chris

On 4 Mar 2015, at 17:42 , Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Chris,

And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case?

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

I could see how this could be built into a future new gTLD process.

e.g the String Similarity panel could first identify strings that are potentially confusing and should be in a contention set - e.g. .hotels and .hoteis. Then a separate panel could be convened (perhaps with three panellists) to consider the case on its merits taking submissions from both parties and any other interested members of the global public.

Another common scenario we have seen is where third parties (ie non-applicants, and not ccTLD managers or gTLD operators) have disputed that two strings should have been found as similar but were not - e.g. .car and .cars. Again such a situation could perhaps be appealed to a larger panel to consider on its merits - I would assume those bringing the dispute would have some standing to raise the issue - e.g. perhaps the Car Industry etc. - on the basis that they could be materially affected by having the two strings.

I think it is important to remember that this was a major program that was rolled out and there are lots of learnings. Part of being accountable is to address those short-comings in the next release of the process. We have been very careful about changing the rules of the process while it is underway. It is not that dissimilar to planning processes for building approvals etc. When a new area of a city is released for development - the rules may need to be changed to prevent undesirable developments that were not originally foreseen (e.g. buildings too tall, or buildings not fireproof, earthquake proof etc). However the changes need to be made through a community consultation process - rather than the Board imposing new or changed rules along the way.

I think we are all keen to see the processes and appeal mechanisms improved. I have personally spent many hours reviewing reconsideration requests. As a general rule for every loser in the panel and dispute process - this has resulted in reconsideration as the cost to reconsider versus the cost to apply for a new gTLD was very low. In quite a few of those you could see fairly clearly that the right decision had been made on its merits, and in other cases I could see how a different panel might make a different decision on its merits. Most of the reconsideration requests spend most of their submission arguing the merits of their original case - and few have been able to identify errors in the process.

Regards, Bruce Tonkin

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

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

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

------------------------------ <http://www.avast.com/>

This email has been checked for viruses by Avast antivirus software. www.avast.com

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

Dear Are, Are we facing a problem assisting from some degree of similarity between A WORD ( TERM / NAME) when it appears in one language ( say English in the case under consideration ) compared to another language ( Say Portuguese in the same case) which resulted difficulties for the applicant Or We are facing deficiencies in application of IRP. For each of the above two cases , there should be different approach to resolve them. However, the similarity in spelling/ language is an action which could be more traditionally and easily resolved( ICANN intervention in amending Applicant Guide BOOK) where as for the second case which is an accountability issue that CCWG need to intervene . Regards Kavouss 2015-03-04 11:09 GMT+01:00 Mathieu Weill <mathieu.weill@afnic.fr>:

Dear Erika,

This kind of insights would be very valuable indeed ! Can I suggest you liaise with Becky as WP2 rapporteur ? Enhancing the review / redress processes is very high on Becky's group agenda right now so she can certainly use your help and insights.

Best Mathieu

Le 04/03/2015 10:54, Erika Mann a écrit :

Avri, Colleagues - Happy to develop a first draft proposal for input/ review based on WTO processes, taken into consideration the ICANN specific obligations and values.

Can do a first draft next week.

Erika

On Wed, Mar 4, 2015 at 9:44 AM, Avri Doria <avri@acm.org> wrote:

...

Hi,

I think this is an excellent idea and have heard it suggested before. Might be good to have someone lay out the features of the procedure.

avri

On 04-Mar-15 08:54, Erika Mann wrote:

Reviewing the comments made in this email thread, I refer in particular to Chris LaHatte's comment, posted below. I think he is right, we need to establish a dispute resolution system that values each case based on its individual parameters - keeping international law parameters and DNS specific legal parameters into consideration. My idea always was to 'copy' the WTO dispute settlement procedure. It is sufficient flexible, keeps involved complainants and third party interests in balance and it must respect global public interest parameters as well. I have 15 years experience in this area, happy to help. Erika

(From Chris LaHatte) "Accountability and a general sense is already being fully discussed. However the more difficult issue is designing a dispute resolution system which has the flexibility to discuss the issues graphically illustrated by this case. Do we want to set up a quasi-judicial system within ICANN with a level of review or appeal? Should we try and harmonise all of the existing review systems so that there is a common procedure and a review/appeal level?"

On Wed, Mar 4, 2015 at 7:54 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Bruce,

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

Absolutely. And if you’re correct then the review would be of the merits of an independent panel decision. Whilst such a review mechanism seems equitable to me I think the key point is that this would need to be built in to a future new gTLD process, presumably arising from policy review and recommendations of the gNSO. Thus, I’m unsure that the real issue in this case can be solved by the work of the CCWG.

I think we are all keen to see the processes and appeal mechanisms improved.

100% agree. And that is work that I think the CCWG can do.

Cheers,

Chris

On 4 Mar 2015, at 17:42 , Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Chris,

And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case?

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

I could see how this could be built into a future new gTLD process.

e.g the String Similarity panel could first identify strings that are potentially confusing and should be in a contention set - e.g. .hotels and .hoteis. Then a separate panel could be convened (perhaps with three panellists) to consider the case on its merits taking submissions from both parties and any other interested members of the global public.

Another common scenario we have seen is where third parties (ie non-applicants, and not ccTLD managers or gTLD operators) have disputed that two strings should have been found as similar but were not - e.g. .car and .cars. Again such a situation could perhaps be appealed to a larger panel to consider on its merits - I would assume those bringing the dispute would have some standing to raise the issue - e.g. perhaps the Car Industry etc. - on the basis that they could be materially affected by having the two strings.

I think it is important to remember that this was a major program that was rolled out and there are lots of learnings. Part of being accountable is to address those short-comings in the next release of the process. We have been very careful about changing the rules of the process while it is underway. It is not that dissimilar to planning processes for building approvals etc. When a new area of a city is released for development - the rules may need to be changed to prevent undesirable developments that were not originally foreseen (e.g. buildings too tall, or buildings not fireproof, earthquake proof etc). However the changes need to be made through a community consultation process - rather than the Board imposing new or changed rules along the way.

I think we are all keen to see the processes and appeal mechanisms improved. I have personally spent many hours reviewing reconsideration requests. As a general rule for every loser in the panel and dispute process - this has resulted in reconsideration as the cost to reconsider versus the cost to apply for a new gTLD was very low. In quite a few of those you could see fairly clearly that the right decision had been made on its merits, and in other cases I could see how a different panel might make a different decision on its merits. Most of the reconsideration requests spend most of their submission arguing the merits of their original case - and few have been able to identify errors in the process.

Regards, Bruce Tonkin

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

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

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

------------------------------ <http://www.avast.com/>

This email has been checked for viruses by Avast antivirus software. www.avast.com

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

_______________________________________________ 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 *****************************

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

Paragraph 129 (attached) is a good reminder that the bottom-up process is itself an accountability mechanism, where many often disparate parties have the opportunity to come together and agree on, or disagree with, something. Any appeals system needs to sit within that unique ICANN context. [image: Inline images 1] Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/ On 4 March 2015 at 05:36, Erika Mann <erika@erikamann.com> wrote:

Yes Mathieu, I will talk to Beck. I had a chat with her already but need to talk to her again.

Thanks, Erika

+32 498 12 13 54

On Wed, Mar 4, 2015 at 11:09 AM, Mathieu Weill <mathieu.weill@afnic.fr> wrote:

...

Dear Erika,

This kind of insights would be very valuable indeed ! Can I suggest you liaise with Becky as WP2 rapporteur ? Enhancing the review / redress processes is very high on Becky's group agenda right now so she can certainly use your help and insights.

Best Mathieu

Le 04/03/2015 10:54, Erika Mann a écrit :

Avri, Colleagues - Happy to develop a first draft proposal for input/ review based on WTO processes, taken into consideration the ICANN specific obligations and values.

Can do a first draft next week.

Erika

On Wed, Mar 4, 2015 at 9:44 AM, Avri Doria <avri@acm.org> wrote:

...

Hi,

I think this is an excellent idea and have heard it suggested before. Might be good to have someone lay out the features of the procedure.

avri

On 04-Mar-15 08:54, Erika Mann wrote:

Reviewing the comments made in this email thread, I refer in particular to Chris LaHatte's comment, posted below. I think he is right, we need to establish a dispute resolution system that values each case based on its individual parameters - keeping international law parameters and DNS specific legal parameters into consideration. My idea always was to 'copy' the WTO dispute settlement procedure. It is sufficient flexible, keeps involved complainants and third party interests in balance and it must respect global public interest parameters as well. I have 15 years experience in this area, happy to help. Erika

(From Chris LaHatte) "Accountability and a general sense is already being fully discussed. However the more difficult issue is designing a dispute resolution system which has the flexibility to discuss the issues graphically illustrated by this case. Do we want to set up a quasi-judicial system within ICANN with a level of review or appeal? Should we try and harmonise all of the existing review systems so that there is a common procedure and a review/appeal level?"

On Wed, Mar 4, 2015 at 7:54 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Bruce,

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

Absolutely. And if you’re correct then the review would be of the merits of an independent panel decision. Whilst such a review mechanism seems equitable to me I think the key point is that this would need to be built in to a future new gTLD process, presumably arising from policy review and recommendations of the gNSO. Thus, I’m unsure that the real issue in this case can be solved by the work of the CCWG.

I think we are all keen to see the processes and appeal mechanisms improved.

100% agree. And that is work that I think the CCWG can do.

Cheers,

Chris

On 4 Mar 2015, at 17:42 , Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Chris,

And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case?

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

I could see how this could be built into a future new gTLD process.

e.g the String Similarity panel could first identify strings that are potentially confusing and should be in a contention set - e.g. .hotels and .hoteis. Then a separate panel could be convened (perhaps with three panellists) to consider the case on its merits taking submissions from both parties and any other interested members of the global public.

Another common scenario we have seen is where third parties (ie non-applicants, and not ccTLD managers or gTLD operators) have disputed that two strings should have been found as similar but were not - e.g. .car and .cars. Again such a situation could perhaps be appealed to a larger panel to consider on its merits - I would assume those bringing the dispute would have some standing to raise the issue - e.g. perhaps the Car Industry etc. - on the basis that they could be materially affected by having the two strings.

I think it is important to remember that this was a major program that was rolled out and there are lots of learnings. Part of being accountable is to address those short-comings in the next release of the process. We have been very careful about changing the rules of the process while it is underway. It is not that dissimilar to planning processes for building approvals etc. When a new area of a city is released for development - the rules may need to be changed to prevent undesirable developments that were not originally foreseen (e.g. buildings too tall, or buildings not fireproof, earthquake proof etc). However the changes need to be made through a community consultation process - rather than the Board imposing new or changed rules along the way.

I think we are all keen to see the processes and appeal mechanisms improved. I have personally spent many hours reviewing reconsideration requests. As a general rule for every loser in the panel and dispute process - this has resulted in reconsideration as the cost to reconsider versus the cost to apply for a new gTLD was very low. In quite a few of those you could see fairly clearly that the right decision had been made on its merits, and in other cases I could see how a different panel might make a different decision on its merits. Most of the reconsideration requests spend most of their submission arguing the merits of their original case - and few have been able to identify errors in the process.

Regards, Bruce Tonkin

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

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

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

------------------------------ <http://www.avast.com/>

This email has been checked for viruses by Avast antivirus software. www.avast.com

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

_______________________________________________ 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 *****************************

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

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

+1 and Jacob, I recall with the utmost ease that you were instrumental in introducing me to the ICANN process. RD On Mar 4, 2015 3:38 PM, "Erika Mann" <erika@erikamann.com> wrote:

Exactly Jacob. Thanks for looking into this.

Erika

On Wed, Mar 4, 2015 at 8:02 PM, Jacob Malthouse <jacob@bigroom.ca> wrote:

...

Paragraph 129 (attached) is a good reminder that the bottom-up process is itself an accountability mechanism, where many often disparate parties have the opportunity to come together and agree on, or disagree with, something. Any appeals system needs to sit within that unique ICANN context.

[image: Inline images 1]

Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/

On 4 March 2015 at 05:36, Erika Mann <erika@erikamann.com> wrote:

...

Yes Mathieu, I will talk to Beck. I had a chat with her already but need to talk to her again.

Thanks, Erika

+32 498 12 13 54

On Wed, Mar 4, 2015 at 11:09 AM, Mathieu Weill <mathieu.weill@afnic.fr> wrote:

...

Dear Erika,

This kind of insights would be very valuable indeed ! Can I suggest you liaise with Becky as WP2 rapporteur ? Enhancing the review / redress processes is very high on Becky's group agenda right now so she can certainly use your help and insights.

Best Mathieu

Le 04/03/2015 10:54, Erika Mann a écrit :

Avri, Colleagues - Happy to develop a first draft proposal for input/ review based on WTO processes, taken into consideration the ICANN specific obligations and values.

Can do a first draft next week.

Erika

On Wed, Mar 4, 2015 at 9:44 AM, Avri Doria <avri@acm.org> wrote:

...

Hi,

I think this is an excellent idea and have heard it suggested before. Might be good to have someone lay out the features of the procedure.

avri

On 04-Mar-15 08:54, Erika Mann wrote:

Reviewing the comments made in this email thread, I refer in particular to Chris LaHatte's comment, posted below. I think he is right, we need to establish a dispute resolution system that values each case based on its individual parameters - keeping international law parameters and DNS specific legal parameters into consideration. My idea always was to 'copy' the WTO dispute settlement procedure. It is sufficient flexible, keeps involved complainants and third party interests in balance and it must respect global public interest parameters as well. I have 15 years experience in this area, happy to help. Erika

(From Chris LaHatte) "Accountability and a general sense is already being fully discussed. However the more difficult issue is designing a dispute resolution system which has the flexibility to discuss the issues graphically illustrated by this case. Do we want to set up a quasi-judicial system within ICANN with a level of review or appeal? Should we try and harmonise all of the existing review systems so that there is a common procedure and a review/appeal level?"

On Wed, Mar 4, 2015 at 7:54 AM, Chris Disspain <ceo@auda.org.au> wrote:

...

Hi Bruce,

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

Absolutely. And if you’re correct then the review would be of the merits of an independent panel decision. Whilst such a review mechanism seems equitable to me I think the key point is that this would need to be built in to a future new gTLD process, presumably arising from policy review and recommendations of the gNSO. Thus, I’m unsure that the real issue in this case can be solved by the work of the CCWG.

I think we are all keen to see the processes and appeal mechanisms improved.

100% agree. And that is work that I think the CCWG can do.

Cheers,

Chris

On 4 Mar 2015, at 17:42 , Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Chris,

And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case?

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

I could see how this could be built into a future new gTLD process.

e.g the String Similarity panel could first identify strings that are potentially confusing and should be in a contention set - e.g. .hotels and .hoteis. Then a separate panel could be convened (perhaps with three panellists) to consider the case on its merits taking submissions from both parties and any other interested members of the global public.

Another common scenario we have seen is where third parties (ie non-applicants, and not ccTLD managers or gTLD operators) have disputed that two strings should have been found as similar but were not - e.g. .car and .cars. Again such a situation could perhaps be appealed to a larger panel to consider on its merits - I would assume those bringing the dispute would have some standing to raise the issue - e.g. perhaps the Car Industry etc. - on the basis that they could be materially affected by having the two strings.

I think it is important to remember that this was a major program that was rolled out and there are lots of learnings. Part of being accountable is to address those short-comings in the next release of the process. We have been very careful about changing the rules of the process while it is underway. It is not that dissimilar to planning processes for building approvals etc. When a new area of a city is released for development - the rules may need to be changed to prevent undesirable developments that were not originally foreseen (e.g. buildings too tall, or buildings not fireproof, earthquake proof etc). However the changes need to be made through a community consultation process - rather than the Board imposing new or changed rules along the way.

I think we are all keen to see the processes and appeal mechanisms improved. I have personally spent many hours reviewing reconsideration requests. As a general rule for every loser in the panel and dispute process - this has resulted in reconsideration as the cost to reconsider versus the cost to apply for a new gTLD was very low. In quite a few of those you could see fairly clearly that the right decision had been made on its merits, and in other cases I could see how a different panel might make a different decision on its merits. Most of the reconsideration requests spend most of their submission arguing the merits of their original case - and few have been able to identify errors in the process.

Regards, Bruce Tonkin

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

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

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

------------------------------ <http://www.avast.com/>

This email has been checked for viruses by Avast antivirus software. www.avast.com

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

_______________________________________________ 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 *****************************

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

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

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

Greg, to digress slightly and even more fascinatinger :-)-O why will Thomas Rickert consider NZ and NA not similar while you and I do? Because he uses a QWERTY keyboard whereas you and I use a QWERTZ one. In the early days when I was still using a German keyboard it took me a while to figure out why messages to NZ were bouncing via the expensive telephone link to NA. UA and NA are another case. Handwritten they are extremely difficult to keep apart... SU and US for the dyslexic. Ever thought about bit-wise similarities? We had a presentation on one of the TechDays which showed that random events are more common than originally thought, but AO and AQ (never mind the similarity), NE and NE, PS and PT, are one bit separated from each other. On 2015-03-05 13:19, Greg Shatan wrote: [...]

Where the SSRP went awry was in its actual results. I'm not prepared to say this was a design flaw or a process flaw. But the results flabbergasted many people. Somehow it seemed to mutate into a "bad eyesight similarity review," since the only two "positives" were one where "i" gets confused with "l" and one where "rn" gets confused with "m". Meanwhile, singulars were not similar to plurals. So "hotels" is a similar string to "hoteis" but not to "hotel". "Fascinating," as the late Mr. Spock might say. [...]

Maybe the answer to hotels, hoteis and hotel, lies in that it is easier to mistype hotels and hoteis rather than hotel, even if the Levenshtein distance is the same (1 edit or 1 addition). el

Hello Greg,

...

Where the SSRP went awry was in its actual results.  I'm not prepared to say this was a design flaw or a process flaw.  But the results flabbergasted many people.  Somehow it seemed to mutate into a "bad eyesight similarity review," since the only two "positives" were one where "i" gets confused with "l" and one where "rn" gets confused with "m". Meanwhile, singulars were not similar to plurals.  So "hotels" is a similar string to "hoteis" but not to "hotel".  "Fascinating," as the late Mr. Spock might say.

...

But -- there's no recourse for results, unless a process was not followed.  So all of this stands.  In a similar vein, it became apparent to many that all of the Objection processes should have an appeal mechanism, if only to deal with inconsistent results (though I tend to think it should be able to revisit the merits of each case as well).  This is absolutely a design flaw in my mind.  So, I think we can embrace the fact that these processes resulted from multistakeholder activities without believing that this makes them perfect or unassailable.

Yes – one of the original goals from the new gTLD policy was: “New generic top-level domains (gTLDs) must be introduced in an orderly, timely and predictable way.” The predictable bit to me – would be that if you formed another panel of experts with respect to string similarity – that the results would basically be the same. I don’t think the current iteration of the string similarity test meets that requirement yet. As an engineer - we would say that we want the results to be deterministic. Ie you get the same result each time you run the process. It is clear that in some cases applicants or concerned members of the community wanted to get a "second opinion" and that was not available in the process. The challenge then is what to do when the second opinion differs from the first opinion. How do you ensure the second step has more levels of expertise, rigour, due diligence, etc to mean that it should over-ride the first opinion. Regards, Bruce Tonkin

Dear Colleagues, As you may be aware, the African Union Commission endorsed application for the new gTLD (dot Africa) has been the subject of a series of applications for review by another applicant including the IRP initiated in October 2013. Article 4 Section 3 of the Bylaws, which state (amongst others) that: * "The IRP Panel should strive to issue its written declaration no later than six months after the filing of the request for independent review. * In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only * The IR Panel has so far oApplied interim protections stopping ICANN from progressing any application for dot Africa until the Panel has concluded its work; oDetermined that a formal hearing, including calling of witnesses, should occur; oDecided to convene an in person hearing including cross-examination of witnesses, which has not taken place yet due to the withdrawal of a panel member. oNot set a time for completion, despite the By Laws requiring a Panel to strive to issue its written declaration no later than six months after the filing of a Request (Article IV, s.3) Our observation is that this important accountability (IRP) process in its current form is dysfunctional and does not seem to benefit any of the affected parties. While we focus on strengthening review and redress mechanisms for example by making them more accessible (through lower costs and easier "standing" to make a complaint) and applicable to a wider range of Board decisions, etc, we would also like to provisions put in place to ensure thatthere is redress against the dispute resolution provider in the event that the process goes off-track. There are several possible inputs to the enhancing ICANN accountability process that draw on the dot Africa experience to date. oCommunity Empowerment (WP1) §Community empowerment with regard to ICANN functions needs to be exercised responsibly: If there are checks and balances on ICANN, what checks and balances apply to different sections of the ICANN community? §Process issues need to be considered from the viewpoint of those who are simply trying to conduct legitimate business with ICANN. §There is a need to avoid legitimate public policy, commercial and technical objectives, for example from new gTLD applicants in underserved regions, being frustrated by lengthy procedural delays through no fault of those trying to achieve them oReview and Redress (WP2) §Grounds for review, especially at the IRP stage, should be clearly specified. §All review processes should have some form of time limit for each stage, but allowing for some flexibility in specified circumstances. §Any proposal for ICANN to be bound by an arbitration process needs to be considered carefully and subject to rigorous appraisal. §Redress against the dispute resolution provider in the event that the process goes off-track. oStress Testing (or Contingencies) §These should include the risk of gridlocking ICANN decision-making through use of cascading review mechanisms. §Any of the parties exploited ICANN's hands-off approach to the detriment of other stakeholders and affected parties. Any accountability process should in turn have its own accountability fail-safes. Best regards Alice Munyua African Union Commission (AUC) On 06/03/2015 02:34, Kieren McCarthy wrote:

It's also worth noting that almost the same issue exists with the dot-gay community ruling.

A third party evaluator made their evaluation. It doesn't seem right to a lot of people. But ICANN's accountability processes are only capable of looking at process rather than correctness of decision.

I think Bruce's engineer comment is very useful in that it highlights not only how ICANN has got things wrong in some areas but also why there is a significant disconnect between different groups.

The fact is that new gTLDs go beyond mere technical considerations: an "i" looking similar to an "l". They are words, and people associate meaning to them. That is the case both for users and for applicants.

ICANN wants to apply technical rules to human issues and when that doesn't work it calls in legal argument. Legal argument then immediately creates an adversarial relationship between ICANN and whoever want to be heard.

In the human world here is what happens:

* Technical rules fail to account for all possibilities * As a result there is a bad call * The person at the end of the bad call wants people to take a look at it * ICANN refuses to listen * They get annoyed

In the ICANN world, this is what happens:

* The rules were created by everyone * The rules were followed * Someone didn't like the rules so they are trying to force a change to them * We need to protect the rules or the system will break down * This person is threatening the organization by challenging the rules

There are two fundamental beliefs that are behind ICANN corporate's inability to see how it needs to change to deal with these persistent problems:

1. You can't admit fault 2. Process is the answer

Both are wrong.

ICANN can - and should - admit fault. It should be able to say: we created these rules to the best of our knowledge but we didn't account for this possibility. In this case the rules did not provide the right answer.

And second, the blind belief in process as a panacea when it often creates distrust and exacerbates the problem. As we have seen from this dot-hotels example, the different process steps kept giving back the same answer because they asked basically the same question each time.

But the right question was never asked. ICANN may have "won" but we all know that the problem that was there at the start is still there and still hasn't been tackled: is "hotels" and "hoteis" really similar in this context? Would they really cause widespread confusion?

As I think George Sadowsky pointed out, the fact is that most content on a "hoteis" website is likely to be in Portuguese. That is going to create a much stronger dissonance than someone mistaking an 'i" for an 'l" in the browser bar.

George was applying human judgment. But ICANN continues to undervalue that approach. It's perhaps not surprising given the organization's technical background and remit. But it is time to change.

Legal process needs to be put at the end of the line, when everything else has failed, not as the first port of call. And human judgement needs to be inserted at the post-implementation stage.

Kieren

On Thu, Mar 5, 2015 at 1:20 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:

Hello Greg,

>> Where the SSRP went awry was in its actual results. I'm not prepared to say this was a design flaw or a process flaw. But the results flabbergasted many people. Somehow it seemed to mutate into a "bad eyesight similarity review," since the only two "positives" were one where "i" gets confused with "l" and one where "rn" gets confused with "m". Meanwhile, singulars were not similar to plurals. So "hotels" is a similar string to "hoteis" but not to "hotel". "Fascinating," as the late Mr. Spock might say.

>> But -- there's no recourse for results, unless a process was not followed. So all of this stands. In a similar vein, it became apparent to many that all of the Objection processes should have an appeal mechanism, if only to deal with inconsistent results (though I tend to think it should be able to revisit the merits of each case as well). This is absolutely a design flaw in my mind. So, I think we can embrace the fact that these processes resulted from multistakeholder activities without believing that this makes them perfect or unassailable.

Yes -- one of the original goals from the new gTLD policy was:

"New generic top-level domains (gTLDs) must be introduced in an orderly, timely and predictable way."

The predictable bit to me -- would be that if you formed another panel of experts with respect to string similarity -- that the results would basically be the same. I don't think the current iteration of the string similarity test meets that requirement yet. As an engineer - we would say that we want the results to be deterministic. Ie you get the same result each time you run the process.

It is clear that in some cases applicants or concerned members of the community wanted to get a "second opinion" and that was not available in the process. The challenge then is what to do when the second opinion differs from the first opinion. How do you ensure the second step has more levels of expertise, rigour, due diligence, etc to mean that it should over-ride the first opinion.

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

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

Alice, this is what I have been saying, for quite a while now. We are not happy with the Board (as an example), so, we add another review mechanism, with which we are not happy, so, we need another redress mechanism. Guess what? we might need arbitration in case we are not happy with the redress... I remain convinced that (to speak in my profession's language) that we are treating the symptoms instead of making a proper diagnosis and treat the underlying cause. greetings, el On 2015-03-06 08:44, Alice Munyua wrote:

Dear Colleagues,

As you may be aware, the African Union Commission endorsed application for the new gTLD (dot Africa) has been the subject of a series of applications for review by another applicant including the IRP initiated in October 2013.

Article 4 Section 3 of the Bylaws, which state (amongst others) that:

* “The IRP Panel should strive to issue its written declaration no later than six months after the filing of the request for independent review. * In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only *

The IR Panel has so far

o Applied interim protections stopping ICANN from progressing any application for dot Africa until the Panel has concluded its work;

o Determined that a formal hearing, including calling of witnesses, should occur;

o Decided to convene an in person hearing including cross-examination of witnesses, which has not taken place yet due to the withdrawal of a panel member.

o Not set a time for completion, despite the By Laws requiring a Panel to strive to issue its written declaration no later than six months after the filing of a Request (Article IV, s.3)

Our observation is that this important accountability (IRP) process in its current form is dysfunctional and does not seem to benefit any of the affected parties.

While we focus on strengthening review and redress mechanisms for example by making them more accessible (through lower costs and easier “standing” to make a complaint) and applicable to a wider range of Board decisions, etc, we would also like to provisions put in place to ensure that there is redress against the dispute resolution provider in the event that the process goes off-track.

There are several possible inputs to the enhancing ICANN accountability process that draw on the dot Africa experience to date.

o Community Empowerment (WP1)

§ Community empowerment with regard to ICANN functions needs to be exercised responsibly: If there are checks and balances on ICANN, what checks and balances apply to different sections of the ICANN community?

§ Process issues need to be considered from the viewpoint of those who are simply trying to conduct legitimate business with ICANN.

§ There is a need to avoid legitimate public policy, commercial and technical objectives, for example from new gTLD applicants in underserved regions, being frustrated by lengthy procedural delays through no fault of those trying to achieve them

o Review and Redress (WP2)

§ Grounds for review, especially at the IRP stage, should be clearly specified.

§ All review processes should have some form of time limit for each stage, but allowing for some flexibility in specified circumstances.

§ Any proposal for ICANN to be bound by an arbitration process needs to be considered carefully and subject to rigorous appraisal.

§ Redress against the dispute resolution provider in the event that the process goes off-track.

o Stress Testing (or Contingencies)

§ These should include the risk of gridlocking ICANN decision-making through use of cascading review mechanisms.

§ Any of the parties exploited ICANN’s hands-off approach to the detriment of other stakeholders and affected parties. Any accountability process should in turn have its own accountability fail-safes.

Best regards Alice Munyua African Union Commission (AUC)

[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

Kavouss, all - I agree with Kavouss that it is not within our remit to second guess specific ongoing disputes. (I’m not sure that anyone suggested writing to ICANN on the .hotel matter, but if so, I think that would also be outside our mandate.) That said, the declaration in the Booking.com case has a very interesting and informative discussion about the reconsideration process in general that I do think is highly relevant to our work. Becky 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: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Date: Friday, March 6, 2015 at 2:40 AM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP Dear All, With respect to the problem raised by Booking.com, it is my strong view that CCWG should not get involved in any sopecific string rather concdntrate of the nature of the complaint .and address that as a principle in its finding. Writting tio ICANN with specific refernce to booking.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__booking.com&d=AwMFaQ&c=M...> string .hotel is outside of our mandate as it is an issue for ICANN to resolve no doubt in consultaion with GAC. Let us concenrate of the principles and not specific string, gTLD . Regards Kavouss r 2015-03-06 8:11 GMT+01:00 Dr Eberhard Lisse <el@lisse.na<mailto:el@lisse.na>>: Alice, this is what I have been saying, for quite a while now. We are not happy with the Board (as an example), so, we add another review mechanism, with which we are not happy, so, we need another redress mechanism. Guess what? we might need arbitration in case we are not happy with the redress... I remain convinced that (to speak in my profession's language) that we are treating the symptoms instead of making a proper diagnosis and treat the underlying cause. greetings, el On 2015-03-06 08:44, Alice Munyua wrote:

Dear Colleagues,

As you may be aware, the African Union Commission endorsed application for the new gTLD (dot Africa) has been the subject of a series of applications for review by another applicant including the IRP initiated in October 2013.

Article 4 Section 3 of the Bylaws, which state (amongst others) that:

* “The IRP Panel should strive to issue its written declaration no later than six months after the filing of the request for independent review. * In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only *

The IR Panel has so far

o Applied interim protections stopping ICANN from progressing any application for dot Africa until the Panel has concluded its work;

o Determined that a formal hearing, including calling of witnesses, should occur;

o Decided to convene an in person hearing including cross-examination of witnesses, which has not taken place yet due to the withdrawal of a panel member.

o Not set a time for completion, despite the By Laws requiring a Panel to strive to issue its written declaration no later than six months after the filing of a Request (Article IV, s.3)

Our observation is that this important accountability (IRP) process in its current form is dysfunctional and does not seem to benefit any of the affected parties.

While we focus on strengthening review and redress mechanisms for example by making them more accessible (through lower costs and easier “standing” to make a complaint) and applicable to a wider range of Board decisions, etc, we would also like to provisions put in place to ensure that there is redress against the dispute resolution provider in the event that the process goes off-track.

There are several possible inputs to the enhancing ICANN accountability process that draw on the dot Africa experience to date.

o Community Empowerment (WP1)

§ Community empowerment with regard to ICANN functions needs to be exercised responsibly: If there are checks and balances on ICANN, what checks and balances apply to different sections of the ICANN community?

§ Process issues need to be considered from the viewpoint of those who are simply trying to conduct legitimate business with ICANN.

§ There is a need to avoid legitimate public policy, commercial and technical objectives, for example from new gTLD applicants in underserved regions, being frustrated by lengthy procedural delays through no fault of those trying to achieve them

o Review and Redress (WP2)

§ Grounds for review, especially at the IRP stage, should be clearly specified.

§ All review processes should have some form of time limit for each stage, but allowing for some flexibility in specified circumstances.

§ Any proposal for ICANN to be bound by an arbitration process needs to be considered carefully and subject to rigorous appraisal.

§ Redress against the dispute resolution provider in the event that the process goes off-track.

o Stress Testing (or Contingencies)

§ These should include the risk of gridlocking ICANN decision-making through use of cascading review mechanisms.

§ Any of the parties exploited ICANN’s hands-off approach to the detriment of other stakeholders and affected parties. Any accountability process should in turn have its own accountability fail-safes.

Best regards Alice Munyua African Union Commission (AUC)

[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733<tel:%2B264%2081%20124%206733> (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=D_912tXO-MKrGOBwNWBcPPMTGWTe2ycEbV7H1b0k-PU&s=uKJiJ6NX8Hi80EI_rj1I29Uaij9VAuQOMZTApwddR2s&e=>

In my view, examining how existing accountability mechanisms are working is useful to the WG. without taking up specific cases. I think that is what Becky has proposed. so, the issue may be how to "take learning" from past uses of accountability mechanisms, and try to "test" those against present and future challenges, and then figure out improvements. Marilyn Cade Sent from my iPad

On Mar 6, 2015, at 10:52 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

+1

Keith

On Mar 6, 2015, at 10:48 AM, Burr, Becky <Becky.Burr@neustar.biz> wrote:

...

Kavouss, all -

I agree with Kavouss that it is not within our remit to second guess specific ongoing disputes. (I’m not sure that anyone suggested writing to ICANN on the .hotel matter, but if so, I think that would also be outside our mandate.) That said, the declaration in the Booking.com case has a very interesting and informative discussion about the reconsideration process in general that I do think is highly relevant to our work.

Becky

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: Kavouss Arasteh <kavouss.arasteh@gmail.com> Date: Friday, March 6, 2015 at 2:40 AM To: Jordan Carter <jordan@internetnz.net.nz> Cc: Accountability Community <accountability-cross-community@icann.org>, Becky Burr <becky.burr@neustar.biz> Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP

Dear All, With respect to the problem raised by Booking.com, it is my strong view that CCWG should not get involved in any sopecific string rather concdntrate of the nature of the complaint .and address that as a principle in its finding. Writting tio ICANN with specific refernce to booking.com string .hotel is outside of our mandate as it is an issue for ICANN to resolve no doubt in consultaion with GAC. Let us concenrate of the principles and not specific string, gTLD . Regards Kavouss r

2015-03-06 8:11 GMT+01:00 Dr Eberhard Lisse <el@lisse.na>:

...

Alice,

this is what I have been saying, for quite a while now.

We are not happy with the Board (as an example),

so, we add another review mechanism, with which we are not happy,

so, we need another redress mechanism.

Guess what? we might need arbitration in case we are not happy with the redress...

I remain convinced that (to speak in my profession's language) that we are treating the symptoms instead of making a proper diagnosis and treat the underlying cause.

greetings, el

On 2015-03-06 08:44, Alice Munyua wrote:

...

Dear Colleagues,

As you may be aware, the African Union Commission endorsed application for the new gTLD (dot Africa) has been the subject of a series of applications for review by another applicant including the IRP initiated in October 2013.

Article 4 Section 3 of the Bylaws, which state (amongst others) that:

* “The IRP Panel should strive to issue its written declaration no later than six months after the filing of the request for independent review. * In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only *

The IR Panel has so far

o Applied interim protections stopping ICANN from progressing any application for dot Africa until the Panel has concluded its work;

o Determined that a formal hearing, including calling of witnesses, should occur;

o Decided to convene an in person hearing including cross-examination of witnesses, which has not taken place yet due to the withdrawal of a panel member.

o Not set a time for completion, despite the By Laws requiring a Panel to strive to issue its written declaration no later than six months after the filing of a Request (Article IV, s.3)

Our observation is that this important accountability (IRP) process in its current form is dysfunctional and does not seem to benefit any of the affected parties.

While we focus on strengthening review and redress mechanisms for example by making them more accessible (through lower costs and easier “standing” to make a complaint) and applicable to a wider range of Board decisions, etc, we would also like to provisions put in place to ensure that there is redress against the dispute resolution provider in the event that the process goes off-track.

There are several possible inputs to the enhancing ICANN accountability process that draw on the dot Africa experience to date.

o Community Empowerment (WP1)

§ Community empowerment with regard to ICANN functions needs to be exercised responsibly: If there are checks and balances on ICANN, what checks and balances apply to different sections of the ICANN community?

§ Process issues need to be considered from the viewpoint of those who are simply trying to conduct legitimate business with ICANN.

§ There is a need to avoid legitimate public policy, commercial and technical objectives, for example from new gTLD applicants in underserved regions, being frustrated by lengthy procedural delays through no fault of those trying to achieve them

o Review and Redress (WP2)

§ Grounds for review, especially at the IRP stage, should be clearly specified.

§ All review processes should have some form of time limit for each stage, but allowing for some flexibility in specified circumstances.

§ Any proposal for ICANN to be bound by an arbitration process needs to be considered carefully and subject to rigorous appraisal.

§ Redress against the dispute resolution provider in the event that the process goes off-track.

o Stress Testing (or Contingencies)

§ These should include the risk of gridlocking ICANN decision-making through use of cascading review mechanisms.

§ Any of the parties exploited ICANN’s hands-off approach to the detriment of other stakeholders and affected parties. Any accountability process should in turn have its own accountability fail-safes.

Best regards Alice Munyua African Union Commission (AUC)

[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

---

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

---

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

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

Kavouss, I agree. However ,have the WG seen the attached http://www.circleid.com/posts/20150307_icann_should_not_ululate_over_booking com_irp_outcome_decision/ I personally feel there will be further community applicants seeking redress in the process. It would be good to monitor their progress, decisions made for future reference. Personally, I am struggling to keep up. Is there a weekly summary on how we are doing on the critical path. I ve just listened to the whole US Senate meeting and Fadi’s comments. Are we therefore assuming/ agreed that ICANN will remain, continue as a California public benefit non profit corporation. Personally I would like to take a look at the accountability mechanisms in place now, particularly in terms of operational readiness & compliance risk , and see how they cope with the introduction of 1400 new TLDs going forward. I am particularly concerned about the level of LOCs exposure secured against the failure of TLD Registries. Sorry, if I am playing catch up and this has been concluded and these are adequately covered within the stress tests. Regards, Phil Phil Buckingham CEO, Dot Advice Limited From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: 06 March 2015 15:48 To: Kavouss Arasteh; Jordan Carter Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP Kavouss, all - I agree with Kavouss that it is not within our remit to second guess specific ongoing disputes. (I’m not sure that anyone suggested writing to ICANN on the .hotel matter, but if so, I think that would also be outside our mandate.) That said, the declaration in the Booking.com case has a very interesting and informative discussion about the reconsideration process in general that I do think is highly relevant to our work. Becky 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 / <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz / www.neustar.biz From: Kavouss Arasteh <kavouss.arasteh@gmail.com> Date: Friday, March 6, 2015 at 2:40 AM To: Jordan Carter <jordan@internetnz.net.nz> Cc: Accountability Community <accountability-cross-community@icann.org>, Becky Burr <becky.burr@neustar.biz> Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP Dear All, With respect to the problem raised by Booking.com, it is my strong view that CCWG should not get involved in any sopecific string rather concdntrate of the nature of the complaint .and address that as a principle in its finding. Writting tio ICANN with specific refernce to booking.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__booking.com&d=AwMFaQ&c= MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=D_912 tXO-MKrGOBwNWBcPPMTGWTe2ycEbV7H1b0k-PU&s=ZKOx_HGKc9gI014WI_e-652LMzse0LXhXCQ OA8zKW-8&e=> string .hotel is outside of our mandate as it is an issue for ICANN to resolve no doubt in consultaion with GAC. Let us concenrate of the principles and not specific string, gTLD . Regards Kavouss r 2015-03-06 8:11 GMT+01:00 Dr Eberhard Lisse <el@lisse.na>: Alice, this is what I have been saying, for quite a while now. We are not happy with the Board (as an example), so, we add another review mechanism, with which we are not happy, so, we need another redress mechanism. Guess what? we might need arbitration in case we are not happy with the redress... I remain convinced that (to speak in my profession's language) that we are treating the symptoms instead of making a proper diagnosis and treat the underlying cause. greetings, el On 2015-03-06 08:44, Alice Munyua wrote:

Dear Colleagues,

As you may be aware, the African Union Commission endorsed application for the new gTLD (dot Africa) has been the subject of a series of applications for review by another applicant including the IRP initiated in October 2013.

Article 4 Section 3 of the Bylaws, which state (amongst others) that:

* “The IRP Panel should strive to issue its written declaration no later than six months after the filing of the request for independent review. * In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only *

The IR Panel has so far

o Applied interim protections stopping ICANN from progressing any application for dot Africa until the Panel has concluded its work;

o Determined that a formal hearing, including calling of witnesses, should occur;

o Decided to convene an in person hearing including cross-examination of witnesses, which has not taken place yet due to the withdrawal of a panel member.

o Not set a time for completion, despite the By Laws requiring a Panel to strive to issue its written declaration no later than six months after the filing of a Request (Article IV, s.3)

Our observation is that this important accountability (IRP) process in its current form is dysfunctional and does not seem to benefit any of the affected parties.

While we focus on strengthening review and redress mechanisms for example by making them more accessible (through lower costs and easier “standing” to make a complaint) and applicable to a wider range of Board decisions, etc, we would also like to provisions put in place to ensure that there is redress against the dispute resolution provider in the event that the process goes off-track.

There are several possible inputs to the enhancing ICANN accountability process that draw on the dot Africa experience to date.

o Community Empowerment (WP1)

§ Community empowerment with regard to ICANN functions needs to be exercised responsibly: If there are checks and balances on ICANN, what checks and balances apply to different sections of the ICANN community?

§ Process issues need to be considered from the viewpoint of those who are simply trying to conduct legitimate business with ICANN.

§ There is a need to avoid legitimate public policy, commercial and technical objectives, for example from new gTLD applicants in underserved regions, being frustrated by lengthy procedural delays through no fault of those trying to achieve them

o Review and Redress (WP2)

§ Grounds for review, especially at the IRP stage, should be clearly specified.

§ All review processes should have some form of time limit for each stage, but allowing for some flexibility in specified circumstances.

§ Any proposal for ICANN to be bound by an arbitration process needs to be considered carefully and subject to rigorous appraisal.

§ Redress against the dispute resolution provider in the event that the process goes off-track.

o Stress Testing (or Contingencies)

§ These should include the risk of gridlocking ICANN decision-making through use of cascading review mechanisms.

§ Any of the parties exploited ICANN’s hands-off approach to the detriment of other stakeholders and affected parties. Any accountability process should in turn have its own accountability fail-safes.

Best regards Alice Munyua African Union Commission (AUC)

[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 <tel:%2B264%2081%20124%206733> (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw &r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=D_912tXO-MKrGOBwNWBcPPMTGWT e2ycEbV7H1b0k-PU&s=uKJiJ6NX8Hi80EI_rj1I29Uaij9VAuQOMZTApwddR2s&e=>

Agree as well. The case should be looked to as an illustrative examples of the limitations of the current IRP. We have enough to do in terms of significantly improving its utility in a post-transition environment and can't afford a side excursion on second-guessing how it should have been decided on the merits. But we should consider who should have the ability to question the merits - the community only, or an individual entity after the community has or has not exercised its option to challenge the original merits? Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell 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 James M. Bladel Sent: Monday, March 09, 2015 11:34 AM To: Burr, Becky; Kavouss Arasteh; Jordan Carter Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP Agree that we are using this incident as an illustrative example only. Thanks- J. From: <Burr>, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, March 6, 2015 at 10:48 To: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP Kavouss, all - I agree with Kavouss that it is not within our remit to second guess specific ongoing disputes. (I'm not sure that anyone suggested writing to ICANN on the .hotel matter, but if so, I think that would also be outside our mandate.) That said, the declaration in the Booking.com case has a very interesting and informative discussion about the reconsideration process in general that I do think is highly relevant to our work. Becky 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<http://www.neustar.biz> From: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Date: Friday, March 6, 2015 at 2:40 AM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP Dear All, With respect to the problem raised by Booking.com, it is my strong view that CCWG should not get involved in any sopecific string rather concdntrate of the nature of the complaint .and address that as a principle in its finding. Writting tio ICANN with specific refernce to booking.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__booking.com&d=AwMFaQ&c=M...> string .hotel is outside of our mandate as it is an issue for ICANN to resolve no doubt in consultaion with GAC. Let us concenrate of the principles and not specific string, gTLD . Regards Kavouss r 2015-03-06 8:11 GMT+01:00 Dr Eberhard Lisse <el@lisse.na<mailto:el@lisse.na>>: Alice, this is what I have been saying, for quite a while now. We are not happy with the Board (as an example), so, we add another review mechanism, with which we are not happy, so, we need another redress mechanism. Guess what? we might need arbitration in case we are not happy with the redress... I remain convinced that (to speak in my profession's language) that we are treating the symptoms instead of making a proper diagnosis and treat the underlying cause. greetings, el On 2015-03-06 08:44, Alice Munyua wrote:

Dear Colleagues,

As you may be aware, the African Union Commission endorsed application for the new gTLD (dot Africa) has been the subject of a series of applications for review by another applicant including the IRP initiated in October 2013.

Article 4 Section 3 of the Bylaws, which state (amongst others) that:

* "The IRP Panel should strive to issue its written declaration no later than six months after the filing of the request for independent review. * In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only *

The IR Panel has so far

o Applied interim protections stopping ICANN from progressing any application for dot Africa until the Panel has concluded its work;

o Determined that a formal hearing, including calling of witnesses, should occur;

o Decided to convene an in person hearing including cross-examination of witnesses, which has not taken place yet due to the withdrawal of a panel member.

o Not set a time for completion, despite the By Laws requiring a Panel to strive to issue its written declaration no later than six months after the filing of a Request (Article IV, s.3)

Our observation is that this important accountability (IRP) process in its current form is dysfunctional and does not seem to benefit any of the affected parties.

While we focus on strengthening review and redress mechanisms for example by making them more accessible (through lower costs and easier "standing" to make a complaint) and applicable to a wider range of Board decisions, etc, we would also like to provisions put in place to ensure that there is redress against the dispute resolution provider in the event that the process goes off-track.

There are several possible inputs to the enhancing ICANN accountability process that draw on the dot Africa experience to date.

o Community Empowerment (WP1)

§ Community empowerment with regard to ICANN functions needs to be exercised responsibly: If there are checks and balances on ICANN, what checks and balances apply to different sections of the ICANN community?

§ Process issues need to be considered from the viewpoint of those who are simply trying to conduct legitimate business with ICANN.

§ There is a need to avoid legitimate public policy, commercial and technical objectives, for example from new gTLD applicants in underserved regions, being frustrated by lengthy procedural delays through no fault of those trying to achieve them

o Review and Redress (WP2)

§ Grounds for review, especially at the IRP stage, should be clearly specified.

§ All review processes should have some form of time limit for each stage, but allowing for some flexibility in specified circumstances.

§ Any proposal for ICANN to be bound by an arbitration process needs to be considered carefully and subject to rigorous appraisal.

§ Redress against the dispute resolution provider in the event that the process goes off-track.

o Stress Testing (or Contingencies)

§ These should include the risk of gridlocking ICANN decision-making through use of cascading review mechanisms.

§ Any of the parties exploited ICANN's hands-off approach to the detriment of other stakeholders and affected parties. Any accountability process should in turn have its own accountability fail-safes.

Best regards Alice Munyua African Union Commission (AUC)

[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733<tel:%2B264%2081%20124%206733> (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=D_912tXO-MKrGOBwNWBcPPMTGWTe2ycEbV7H1b0k-PU&s=uKJiJ6NX8Hi80EI_rj1I29Uaij9VAuQOMZTApwddR2s&e=> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4299/9238 - Release Date: 03/06/15

Erika, all, I agree — the WTO dispute settlement system works and deserves to be looked into. I mentioned it to several colleagues in off-line discussions and I welcome your initiative. The WTO system is unique in the intergovernmental context insofar as it has “real teeth” and is able to provide binding judgments. I talked to some WTO staffers a few weeks back to explore whether, and if so, in what ways we could draw lessons from the WTO. They had some caveats, as the WTO dispute settlement is about trade disputes between governments. Private companies turn to their respective governments and ask them to take up their cause, but in the end the dispute is between two governments. The WTO system may therefore not be that easily be transposed into the ICANN environment. However, there is one key element that may be of interest. Under the old GATT regime — the predecessor of WTO --, any affected party could block rulings. Under the Marrakesh Agreements in 1994 the WTO was set up and the dysfunctional GATT dispute settlement system was replaced with a new system “with teeth”. Key was the introduction of a "negative consensus”, meaning that a consensus is needed to reject the ruling of a panel. More about it on the WTO website: http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c2s2p1_e.h... What makes it interesting for ICANN is that the WTO’s General Council — the organisation's highest-level decision-making body where all Member States are represented - retains the (political) authority over the panel findings but at the same time has virtually no power (or at best a very limited power) to reject a panel decision. Best regards Markus On 04 Mar 2015, at 10:54, Erika Mann <erika@erikamann.com> wrote:

Avri, Colleagues - Happy to develop a first draft proposal for input/ review based on WTO processes, taken into consideration the ICANN specific obligations and values.

Can do a first draft next week.

Erika

On Wed, Mar 4, 2015 at 9:44 AM, Avri Doria <avri@acm.org> wrote: Hi,

I think this is an excellent idea and have heard it suggested before. Might be good to have someone lay out the features of the procedure.

avri

On 04-Mar-15 08:54, Erika Mann wrote:

...

Reviewing the comments made in this email thread, I refer in particular to Chris LaHatte's comment, posted below. I think he is right, we need to establish a dispute resolution system that values each case based on its individual parameters - keeping international law parameters and DNS specific legal parameters into consideration. My idea always was to 'copy' the WTO dispute settlement procedure. It is sufficient flexible, keeps involved complainants and third party interests in balance and it must respect global public interest parameters as well. I have 15 years experience in this area, happy to help. Erika

(From Chris LaHatte) "Accountability and a general sense is already being fully discussed. However the more difficult issue is designing a dispute resolution system which has the flexibility to discuss the issues graphically illustrated by this case. Do we want to set up a quasi-judicial system within ICANN with a level of review or appeal? Should we try and harmonise all of the existing review systems so that there is a common procedure and a review/appeal level?"

On Wed, Mar 4, 2015 at 7:54 AM, Chris Disspain <ceo@auda.org.au> wrote: Hi Bruce,

...

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

Absolutely. And if you’re correct then the review would be of the merits of an independent panel decision. Whilst such a review mechanism seems equitable to me I think the key point is that this would need to be built in to a future new gTLD process, presumably arising from policy review and recommendations of the gNSO. Thus, I’m unsure that the real issue in this case can be solved by the work of the CCWG.

...

I think we are all keen to see the processes and appeal mechanisms improved.

100% agree. And that is work that I think the CCWG can do.

Cheers,

Chris

On 4 Mar 2015, at 17:42 , Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

...

Hello Chris,

...

...

And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case?

From my understanding - the complainant basically wants the decision from the string similarity panel that found .hotels and .hoteis to be similar to be reviewed again on its merits. Neither the Reconsideration Process or IRP is currently designed to do this. I assume that the applicants for .hotels and .hoteis would want the ability to make submissions and perhaps both would agree that there is not a risk of consumer confusion because the two strings address different markets (English speaking versus Portuguese speaking etc). The applicants could even agree on a process to avoid confusion between the two strings. e.g. some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were managed by the same registrant - but have content in different languages.

I could see how this could be built into a future new gTLD process.

e.g the String Similarity panel could first identify strings that are potentially confusing and should be in a contention set - e.g. .hotels and .hoteis. Then a separate panel could be convened (perhaps with three panellists) to consider the case on its merits taking submissions from both parties and any other interested members of the global public.

Another common scenario we have seen is where third parties (ie non-applicants, and not ccTLD managers or gTLD operators) have disputed that two strings should have been found as similar but were not - e.g. .car and .cars. Again such a situation could perhaps be appealed to a larger panel to consider on its merits - I would assume those bringing the dispute would have some standing to raise the issue - e.g. perhaps the Car Industry etc. - on the basis that they could be materially affected by having the two strings.

I think it is important to remember that this was a major program that was rolled out and there are lots of learnings. Part of being accountable is to address those short-comings in the next release of the process. We have been very careful about changing the rules of the process while it is underway. It is not that dissimilar to planning processes for building approvals etc. When a new area of a city is released for development - the rules may need to be changed to prevent undesirable developments that were not originally foreseen (e.g. buildings too tall, or buildings not fireproof, earthquake proof etc). However the changes need to be made through a community consultation process - rather than the Board imposing new or changed rules along the way.

I think we are all keen to see the processes and appeal mechanisms improved. I have personally spent many hours reviewing reconsideration requests. As a general rule for every loser in the panel and dispute process - this has resulted in reconsideration as the cost to reconsider versus the cost to apply for a new gTLD was very low. In quite a few of those you could see fairly clearly that the right decision had been made on its merits, and in other cases I could see how a different panel might make a different decision on its merits. Most of the reconsideration requests spend most of their submission arguing the merits of their original case - and few have been able to identify errors in the process.

Regards, Bruce Tonkin

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

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

_______________________________________________ Accountability-Cross-Community mailing list

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

This email has been checked for viruses by Avast antivirus software. www.avast.com

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

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

It’s not really our job to look-back and second-guess prior decisions. Yet, it’s really helpful to use examples form the recent past to fashion stress tests and evaluate whether we’ve designed accountability measures that answer the test. To that end, we have Stress Tests #20 and #23, which approach the problems surfaced by the Booking IRP. See below: Stress Test: #20. A court order is issued to block ICANN’s delegation of a new TLD, because of complaint by existing TLD operators or other aggrieved parties. Consequence: ICANN’s decision about whether to honor such a court order could bring liability to ICANN and its contract parties. Existing Accountability Measures: In the example of singular/plural gTLDs, the board’s decision to accept independent panel rulings was not subject to community scrutiny: the community had no standing to object; and Reconsideration requests looked only at process and not at the substance of the decision. If ICANN board discarded policy in order to respond to the court order, the community would not have standing or means to challenge or veto that decision. Proposed Accountability Measures: Preventive: During policy development, the community would have standing to challenge management and board decisions about policy and implementation. Remedial: If consensus policy were adopted but the ICANN board discarded policy in order to respond to the court order, the community has several options: One proposed measure would empower a supermajority of ICANN community representatives to veto a board decision. Another measure would give the community standing to file for Reconsideration or IRP [what would be the standard of review?] Another measure would allow community to force ICANN to implement a consensus policy or recommendation of an AoC Review. Preliminary Conclusions: This threat is not directly related to the transition of IANA stewardship Existing measures would be inadequate. Proposed measures would be an improvement but might still be inadequate. — Stress Test: #23. ICANN uses RAA or other agreements to impose requirements on third parties, outside scope of ICANN mission. Affected third parties, not being contracted to ICANN, have no effective recourse against ICANN. Contracted parties, not being implicated by the requirements themselves, do not avail themselves of mechanisms allowing them to challenge ICANN’s decision. Consequence: ICANN seen as a monopoly leveraging power in one market (domain names) into adjacent markets. Existing Accountability Measures: Affected 3rd parties (e.g. registrants and users) have no standing to challenge ICANN on its approved policies. Affected 3rd parties (e.g. registrants and users) have no standing to challenge ICANN management and board on how it has implemented approved policies. If ICANN changes its legal jurisdiction, that could affect the ability of aggrieved 3rd parties to sue ICANN. Proposed Accountability Measures: Affected 3rd parties (e.g. registrants and users) could lobby for these community powers of review and redress: A proposed measure to empower a supermajority of ICANN community representatives to veto a board decision. A proposed measure to empower the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision. [What would be the standard used for this review?] Another proposed measure is to amend ICANN bylaws to prevent the organization from expanding scope beyond what is needed for SSR in DNS operations and to meet mission and core values of ICANN. Preliminary Conclusions: This threat is not directly related to the transition of IANA stewardship Existing measures would be inadequate. Proposed measures are … ? From: Dr Eberhard Lisse Organization: Dr Eberhard W Lisse Reply-To: Dr Eberhard Lisse Date: Wednesday, March 4, 2015 at 2:18 AM Cc: "directors@omadhina.net<mailto:directors@omadhina.net>", "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP Chris, this is an amazingly good idea :-)-O As long as the case is closed. el On 2015-03-04 08:07, Chris Disspain wrote: Greg, I think both you and Philip raise interesting points. A useful exercise for the CCWG may be to examine the booking.com <http://booking.com> -v- ICANN IPR and consider what recourse mechanisms the CCWG believes should have been available to any of the relevant parties and at what times during the process. This may help clarify the difference between (and community desire for) recourse mechanisms that test policy decisions, decisions of independent panels, decisions of the Board and so on. And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case? Cheers, Chris Disspain [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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

Hello Greg,

...

  I think it is enough to say that it was not intended to allow any challenge to a decision on the merits, so whether a decision is good or bad is irrelevant to this mechanism. 

...

If the community wants a mechanism that goes directly to the merits of a decision (as opposed to "back door" challenges to procedure), this ain't it.  

...

If the community wants a mechanism that goes directly to the merits of a decision, then it's up to this group at this time to push forward toward that goal.

Yes – I think that is a good summary. The IRP panel came to similar conclusions as the Board Governance Committee and the Board. You can see some of the discussions reflected in the new gTLD programme committee minutes that were quoted by the IRP panel. The current reconsideration process tends to focus on whether the ICANN policies, and with respect to new gTLDs whether the processes in the guidebook were followed. There is not currently an appeals process that allows re-looking at the case based on the merits. If we look at the UDRP process for example, either party in the dispute can take the matter to court and the court will basically make a decision based on the merits . The courts is a much more expensive process - but it does allow examination on the merits of the case, and presumably the court decision itself could be subject to various court appeals processes. We need something similar for many of the dispute processes in the new gTLD program, and potentially other areas of ICANN decision making. This is a key learning from the past two years of reconsideration cases. Regards, Bruce Tonkin

I wouldn't go so far as to say it was "designed to support whatever decision is made by the staff and Board, irrespective of whether that is a good decision or not,"  That's a phrasing that seems to ascribe ill intent, which i think is an exercise too often engaged in within this community and less often correct than those that indulge in it think.  

In a rush to discredit my response you have rather missed the point, Greg. The point is that defence of whatever is decided is taken to be more important than reaching the right decision. That is an unfortunate reality that needs to be tackled. Tinkering with processes is only going to create more tension. The start point needs to be a recognition that ICANN will on occasion make the wrong decision and a discussion about how that can be rectified without it impinging on ICANN's overall authority. If we try to simply add things onto mechanisms that have been have at their core the idea of protecting Board decisions at all costs, then we'll all be back here again in 10 years wondering why things haven't improved. Kieren - [sent through phone] On Tue, Mar 3, 2015 at 9:52 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

An appeal or review process that is limited to challenging procedural and process errors, and that leaves no recourse to challenge the merits of a decision, or the merits of the policies and procedures used to arrive at that decision, is so narrowly cast as to be worthless in the vast majority of cases. The fact that it is used as often as it is speaks much more to the importance of the decisions and to the desperate desire of the community for recourse than it does to the value of the review mechanism itself. It's like drinking from a muddy, stream when you're thirsty -- you drink in hope of satisfaction but end up no better than when you started (or worse, if you count the time, money and resources expended (or the e. coli in the stream). I wouldn't go so far as to say it was "designed to support whatever decision is made by the staff and Board, irrespective of whether that is a good decision or not," That's a phrasing that seems to ascribe ill intent, which i think is an exercise too often engaged in within this community and less often correct than those that indulge in it think. I think it is enough to say that it was not intended to allow any challenge to a decision on the merits, so whether a decision is good or bad is irrelevant to this mechanism. If the community wants a mechanism that goes directly to the merits of a decision (as opposed to "back door" challenges to procedure), this ain't it. If the community wants a mechanism that goes directly to the merits of a decision, then it's up to this group at this time to push forward toward that goal. Greg On Tue, Mar 3, 2015 at 11:35 PM, Kieren McCarthy <kierenmccarthy@gmail.com> wrote:

...

So I've just read it all.

My take away is what I believe many of us are already aware of: that the current accountability systems are designed to support whatever decision is made by the staff and Board, irrespective of whether that is a good decision or not.

In other words, the accountability mechanisms provide no way to force a reversal of a decision even when Board members and the review panel itself think the wrong conclusion had been reached.

For real accountability - rather than long expensive and largely pointless processes - there need to be mechanisms in which the decision itself can be questioned, in which staff can be found to have withheld useful information and held to account for that, in which ICANN corporate is not pitched against an applicant, and in which the people carrying out the review don't have to say "it sucks but there's nothing we can do about it".

Kieren

- [sent through phone]

On Tue, Mar 3, 2015 at 7:38 PM, Phil Corwin <psc@vlaw-dc.com> wrote:

...

I have not had a chance to review the entire 50-page document, but the heart of the decision is at the Conclusion, Sections 141-147 on pp.42-43. (decision attached)

The panel states that the limited nature of the current IRP means that any complainant faces an “uphill battle” and “significant obstavles.> That is especially true where, as here, the adopted policies and procedures are followed, with no available recourse to contesting the soundness of those policies and procedures.

The decision is a good example of the bounds of the current system. The question is to what extent new accountability measures should make challenges to Board actions less of an uphill battle, or provide a basis for challenging the underlying policies and procedures.

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597 <202-559-8597>/Direct*

*202-559-8750 <202-559-8750>/Fax*

*202-255-6172 <202-255-6172>/cell*

*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 *Samantha Eisner *Sent:* Tuesday, March 03, 2015 10:06 PM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP

ICANN received today the final declaration in the independent review proceeding filed by Booking.com. The declaration can be found at https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf.

Best,

Samantha

------------------------------

No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15

<ICANN-ACCT-Bookingdotcom_IRP-final-declaration-03mar15-en.pdf>

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

-- *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>*