Very interesting stuff as we evaluate Accountability. The panel took this By-Law into account but when requested to reconsider its 2014 Order that witnesses who had offered statements would be present at the hearing, it apparently relied not only on its Supplementary Procedures but also on Articles III and IV of the ICANN Bylaws regarding Transparency and Accountability. Specifically, the holding was "22. The Panel finds that this last sentence in Paragraph 12 of ICANN's Bylaws, unduly and improperly restricts the Panel's ability to conduct the 'independent review' it has been explicitly mandated to carryout...." In Paragraph 26, the Panel goes on to conclude that the IRP accountability and review process would have no meaning if the Panel were not permitted to hear and question witnesses. This appeared to be based in part on the fact that applicants waived all judicial recourse in the award process when they filed their applications. This reminds us that when evaluating enforcement mechanisms, the Community must be mindful of the true effectiveness of Accountability mechanisms. I think this is part of what Becky was saying when she talked about judicial independence. Interestingly, the ICANN Board complied with the Panel's Order for live witnesses at the hearing. Does this mean they actually did violate the ICANN ByLaws by doing so? I guess it is pretty easy to see how the Board can get caught "between a rock and hard place" in certain situations. (U.S. slang cultural reference to no good alternative). Anne Anne E. Aikman-Scalese Of Counsel Lewis Roca Rothgerber LLP | One South Church Avenue Suite 700 Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com | www.LRRLaw.com -----Original Message----- From: Alan Greenberg [mailto:alan.greenberg@mcgill.ca] Sent: Monday, September 21, 2015 8:34 PM To: Aikman-Scalese, Anne; 'Bruce Tonkin'; CCWG Accountability Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider I happen to largely agree with the Panel's findings, but this seems to be the week for my seeing humour and irony in lots of places. At 21/09/2015 10:57 PM, Aikman-Scalese, Anne wrote:

The panel also thought it inappropriate that ICANN filed arguments resisting live testimony before the panelists. They thus issued an interim ruling that the judges would be able to question the witnesses and ultimately did so. So the Board was seen by the panel as uncooperative in this respect.

Article IV, Section 3.12 of the Bylaws reads: "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; all evidence, including witness statements, must be submitted in writing in advance." By agreeing to live testimony and questioning witnesses, ICANN would have been in violation of its Bylaws. Alan ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.