Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
At 10:41 PM 3/15/2015, Rahul Sharma wrote:
+1Â David and Phil
Â
Since IRP is only meant to review if Board decisions are in line and consistent with procedures and principles established, and as such cannot challenge any Board decision, a Body that ensures that ICANN adheres to international laws, and if its decisions are legitimate or not  and should be challenged should be (1) an independent body, constituted by a process independent from ICANN and (2) and have expertise in international law, and not just commercial arbitration
Rahul: Just to be clear: it wasn't my understanding that there would be a body the "ensures that ICANN adheres to international laws." In my opinion (which may or may not be shared by others), an Independent Review Panel, which ensures that ICANN adheres to (a) its commitment to consensus decision-making (b) within the stated mission (i.e., only makes policies reasonably necessary for security and stability of the DNS), that will go a long way to keeping the Board within proper limits. I'm not convinced that a second body charged with enforcing international law would be helpful or necessary, and might just over-complicate the process. David
On 16 March 2015 at 05:10, Phil Corwin <<mailto:psc@vlaw-dc.com>psc@vlaw-dc.com> wrote:
Thatâs exactly right, David, and what we just saw in the IRP brought by Booking.com over the finding that .Hotels and .Hoteis were in the same new gTLD contention set
Â
The available accountability mechanisms were restricted to reviewing whether proper procedure had been observed, but could not reach the admittedly questionable merits of the original decision that found them confusingly similar at the gTLD level.
Â
So when should the merits of a Board decision be susceptible to modification or reversal, who has standing to bring such a challenge, and what should be the standard of review? Important questions, and not easy to answer.
Â
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
Â
Twitter: @VlawDC
Â
"Luck is the residue of design" -- Branch Rickey
Â
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Sunday, March 15, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
Â
At 08:16 PM 3/14/2015, Bruce Tonkin wrote:
Under its Articles of Incorporation ICANN already operates âfor the benefit of the Internet community as a a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.â  See: <https://wwww.icann.org/en/about/governance/articles>https://www.icann.org/en/about/governance/articles
The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws.
[SNIP]
Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws. See Bylaws, Art IV sec 3(4):
"The IRP Panel must apply a defined standard of review to the IRP request, focusing on: * did the Board act without conflict of interest in taking its decision?; * did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and * did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"
That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example.
David
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) <http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2n     music <http://tinyurl.com/davidpostmusic>http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com       *******************************
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_______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
Dear All, Many , if not all of comments made are relevant . We need to look the mandate and scope of work opf the IRP .Perhaps it should have some basic /general part and for each and evry case some particular part dealing with that specific issue. There are currently deficiencies in that process and Booking.com is a clear example of that deficiency Kavouss 2015-03-16 22:49 GMT+01:00 David Post <david.g.post@gmail.com>:
At 10:41 PM 3/15/2015, Rahul Sharma wrote:
+1Â David and Phil
Â
Since IRP is only meant to review if Board decisions are in line and consistent with procedures and principles established, and as such cannot challenge any Board decision, a Body that ensures that ICANN adheres to international laws, and if its decisions are legitimate or not  and should be challenged should be (1) an independent body, constituted by a process independent from ICANN and (2) and have expertise in international law, and not just commercial arbitration
Rahul: Just to be clear: it wasn't my understanding that there would be a body the "ensures that ICANN adheres to international laws." In my opinion (which may or may not be shared by others), an Independent Review Panel, which ensures that ICANN adheres to (a) its commitment to consensus decision-making (b) within the stated mission (i.e., only makes policies reasonably necessary for security and stability of the DNS), that will go a long way to keeping the Board within proper limits. I'm not convinced that a second body charged with enforcing international law would be helpful or necessary, and might just over-complicate the process. David
On 16 March 2015 at 05:10, Phil Corwin <psc@vlaw-dc.com> wrote:
That’s exactly right, David, and what we just saw in the IRP brought by Booking.com over the finding that .Hotels and .Hoteis were in the same new gTLD contention set
Â
The available accountability mechanisms were restricted to reviewing whether proper procedure had been observed, but could not reach the admittedly questionable merits of the original decision that found them confusingly similar at the gTLD level.
Â
So when should the merits of a Board decision be susceptible to modification or reversal, who has standing to bring such a challenge, and what should be the standard of review? Important questions, and not easy to answer.
Â
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
Â
Twitter: @VlawDC
Â
"Luck is the residue of design" -- Branch Rickey
Â
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of David Post Sent: Sunday, March 15, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
Â
At 08:16 PM 3/14/2015, Bruce Tonkin wrote:
Under its Articles of Incorporation ICANN already operates “for the benefit of the Internet community as a a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.â€Â   See: https://www.icann.org/en/about/governance/articles <https://wwww.icann.org/en/about/governance/articles>
The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws.
[SNIP]
Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws. See Bylaws, Art IV sec 3(4):
"The IRP Panel must apply a defined standard of review to the IRP request, focusing on:
1. did the Board act without conflict of interest in taking its decision?; 2. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and 3. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"
That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example.
David
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n     <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com       <http://??> *******************************
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0> publications etc. http://www.davidpost.com
*******************************
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Rahul recommended a website Go look at it You will learn facts icann is not telling us Did you know of incidents icann is negotiating w foreign governments? That ICANN cancelled crimes domains due to sanctions? Sent from my iPhone
On Mar 17, 2015, at 7:23 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear All, Many , if not all of comments made are relevant . We need to look the mandate and scope of work opf the IRP .Perhaps it should have some basic /general part and for each and evry case some particular part dealing with that specific issue. There are currently deficiencies in that process and Booking.com is a clear example of that deficiency Kavouss
2015-03-16 22:49 GMT+01:00 David Post <david.g.post@gmail.com>:
At 10:41 PM 3/15/2015, Rahul Sharma wrote:
+1Â David and Phil
Â
Since IRP is only meant to review if Board decisions are in line and consistent with procedures and principles established, and as such cannot challenge any Board decision, a Body that ensures that ICANN adheres to international laws, and if its decisions are legitimate or not  and should be challenged should be (1) an independent body, constituted by a process independent from ICANN and (2) and have expertise in international law, and not just commercial arbitration
Rahul: Just to be clear: it wasn't my understanding that there would be a body the "ensures that ICANN adheres to international laws." In my opinion (which may or may not be shared by others), an Independent Review Panel, which ensures that ICANN adheres to (a) its commitment to consensus decision-making (b) within the stated mission (i.e., only makes policies reasonably necessary for security and stability of the DNS), that will go a long way to keeping the Board within proper limits. I'm not convinced that a second body charged with enforcing international law would be helpful or necessary, and might just over-complicate the process. David
On 16 March 2015 at 05:10, Phil Corwin <psc@vlaw-dc.com> wrote:
That’s exactly right, David, and what we just saw in the IRP brought by Booking.com over the finding that .Hotels and .Hoteis were in the same new gTLD contention set
Â
The available accountability mechanisms were restricted to reviewing whether proper procedure had been observed, but could not reach the admittedly questionable merits of the original decision that found them confusingly similar at the gTLD level.
Â
So when should the merits of a Board decision be susceptible to modification or reversal, who has standing to bring such a challenge, and what should be the standard of review? Important questions, and not easy to answer.
Â
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
Â
Twitter: @VlawDC
Â
"Luck is the residue of design" -- Branch Rickey
Â
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Sunday, March 15, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
Â
At 08:16 PM 3/14/2015, Bruce Tonkin wrote:
Under its Articles of Incorporation ICANN already operates “for the benefit of the Internet community as a a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.â€Â   See: https://www.icann.org/en/about/governance/articles
The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws.
[SNIP]
Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws. See Bylaws, Art IV sec 3(4):
"The IRP Panel must apply a defined standard of review to the IRP request, focusing on: did the Board act without conflict of interest in taking its decision?; did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"
That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example.
David
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n     music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com       *******************************
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
This is exactly right. Since international law is, in the main as Dr. Lisse has said, an agreement between nation states and since, as well, there is almost no consensus on what the substantive content of international law is (beyond the very limited area of IHL) the idea of making ICANN subject to some amorphous idea of an international law is I think unworkable. ICANN is a limited purpose entity. It should be subject to the commercial agreements it makes (with contracted parties, mostly) and to the commitments it makes and/or are adopted by its “member/stakeholders” – that is, us. It cannot and should not be a vehicle for us pouring into it our dreams and hopes about human rights or some undefined public good. Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...> From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, March 16, 2015 5:49 PM To: Rahul Sharma Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law" At 10:41 PM 3/15/2015, Rahul Sharma wrote: +1 David and Phil  Since IRP is only meant to review if Board decisions are in line and consistent with procedures and principles established, and as such cannot challenge any Board decision, a Body that ensures that ICANN adheres to international laws, and if its decisions are legitimate or not  and should be challenged should be (1) an independent body, constituted by a process independent from ICANN and (2) and have expertise in international law, and not just commercial arbitration Rahul: Just to be clear: it wasn't my understanding that there would be a body the "ensures that ICANN adheres to international laws." In my opinion (which may or may not be shared by others), an Independent Review Panel, which ensures that ICANN adheres to (a) its commitment to consensus decision-making (b) within the stated mission (i.e., only makes policies reasonably necessary for security and stability of the DNS), that will go a long way to keeping the Board within proper limits. I'm not convinced that a second body charged with enforcing international law would be helpful or necessary, and might just over-complicate the process. David On 16 March 2015 at 05:10, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com> > wrote: That’s exactly right, David, and what we just saw in the IRP brought by Booking.com over the finding that .Hotels and .Hoteis were in the same new gTLD contention set  The available accountability mechanisms were restricted to reviewing whether proper procedure had been observed, but could not reach the admittedly questionable merits of the original decision that found them confusingly similar at the gTLD level.  So when should the merits of a Board decision be susceptible to modification or reversal, who has standing to bring such a challenge, and what should be the standard of review? Important questions, and not easy to answer.  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> [ mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] On Behalf Of David Post Sent: Sunday, March 15, 2015 9:26 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"  At 08:16 PM 3/14/2015, Bruce Tonkin wrote: Under its Articles of Incorporation ICANN already operates “for the benefit of the Internet community as a a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.â€Â  See: https://www.icann.org/en/about/governance/articles <https://wwww.icann.org/en/about/governance/articles> The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws. [SNIP] Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws. See Bylaws, Art IV sec 3(4): "The IRP Panel must apply a defined standard of review to the IRP request, focusing on: 1. did the Board act without conflict of interest in taking its decision?; 2. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and 3. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?" That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example. David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n     <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com       ******************************* No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15 _______________________________________________ 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 ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0> publications etc. http://www.davidpost.com <http://www.davidpost.com /> *******************************
The IRP was never intended to be a mechanism to challenge the merits of new gTLD panel decisions. Indeed, appeals mechanisms for new gTLD panel decisions were discussed by the community as early as v1 of the draft AGB in 2009. At the time, many comments from the comment focused on a concern that an appeals process would cause undue delay to the program as a whole. See: https://archive.icann.org/en/topics/new-gtlds/agv1-analysis-public-comments-... p87: *"It does not seem that the absence of an appeals process within the process conflicts with ICANN’s role in serving the public interest. There are various countervailing factors to consider in formulating the dispute resolution procedure. Adding a procedure for appeal would increase the cost and extend the duration of many – if not most – proceedings, thereby delaying the introduction of many new gTLDs. If on appeal, the determination is “reversed,” there would be an argument for extending the process even further, resulting in great uncertainty in the process."* and *"At this juncture, ICANN does not plan to introduce an appeals mechanism into the dispute resolution process that has been developed. ICANN has heard many comments about making sure the new gTLD program progresses as swiftly and efficiently as possible. A dispute process that does not include a separate appeals mechanism is intended to help minimize the delay of introduction of new gTLDs into the root zone."* It is unfortunate that the neither ICANN nor the community foresaw that attempts would be made to use the IRP as an appeals process despite it clearly not being one, and despite the community guidance being that there should not be one. Best, Jacob. Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/ On 17 March 2015 at 06:32, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
This is exactly right. Since international law is, in the main as Dr. Lisse has said, an agreement between nation states and since, as well, there is almost no consensus on what the substantive content of international law is (beyond the very limited area of IHL) the idea of making ICANN subject to some amorphous idea of an international law is I think unworkable. ICANN is a limited purpose entity. It should be subject to the commercial agreements it makes (with contracted parties, mostly) and to the commitments it makes and/or are adopted by its “member/stakeholders” – that is, us. It cannot and should not be a vehicle for us pouring into it our dreams and hopes about human rights or some undefined public good.
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
<http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...>
*From:* David Post [mailto:david.g.post@gmail.com] *Sent:* Monday, March 16, 2015 5:49 PM *To:* Rahul Sharma *Cc:* Accountability Cross Community
*Subject:* Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
At 10:41 PM 3/15/2015, Rahul Sharma wrote:
+1Â David and Phil
Â
Since IRP is only meant to review if Board decisions are in line and consistent with procedures and principles established, and as such cannot challenge any Board decision, a Body that ensures that ICANN adheres to international laws, and if its decisions are legitimate or not  and should be challenged should be (1) an independent body, constituted by a process independent from ICANN and (2) and have expertise in international law, and not just commercial arbitration
Rahul: Just to be clear: it wasn't my understanding that there would be a body the "ensures that ICANN adheres to international laws." In my opinion (which may or may not be shared by others), an Independent Review Panel, which ensures that ICANN adheres to (a) its commitment to consensus decision-making (b) within the stated mission (i.e., only makes policies reasonably necessary for security and stability of the DNS), that will go a long way to keeping the Board within proper limits. I'm not convinced that a second body charged with enforcing international law would be helpful or necessary, and might just over-complicate the process. David
On 16 March 2015 at 05:10, Phil Corwin <psc@vlaw-dc.com> wrote:
That’s exactly right, David, and what we just saw in the IRP brought by Booking.com over the finding that .Hotels and .Hoteis were in the same new gTLD contention set
Â
The available accountability mechanisms were restricted to reviewing whether proper procedure had been observed, but could not reach the admittedly questionable merits of the original decision that found them confusingly similar at the gTLD level.
Â
So when should the merits of a Board decision be susceptible to modification or reversal, who has standing to bring such a challenge, and what should be the standard of review? Important questions, and not easy to answer.
Â
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
Â
Twitter: @VlawDC
Â
"Luck is the residue of design" -- Branch Rickey
Â
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of David Post
Sent: Sunday, March 15, 2015 9:26 AM
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
Â
At 08:16 PM 3/14/2015, Bruce Tonkin wrote:
Under its Articles of Incorporation ICANN already operates “for the benefit of the Internet community as a a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.â€Â   See: https://www.icann.org/en/about/governance/articles <https://wwww.icann.org/en/about/governance/articles>
The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws.
[SNIP]
Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws. See Bylaws, Art IV sec 3(4):
"The IRP Panel must apply a defined standard of review to the IRP request, focusing on:
1. did the Board act without conflict of interest in taking its decision?;
2. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and
3. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"
That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example.
David
*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose) http://tinyurl.com/c327w2n     <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>
music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com       <http://??>
*******************************
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0>publications etc. http://www.davidpost.com
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The idea that gTLD panel decisions should be unappealable might have seemed reasonable in the abstract. In practice, it has turned out to enshrine and insulate inconsistent and poorly reasoned decisions. This may not be the right forum for revisiting that decision, as opposed to New gTLD Program review processes. Furthermore, this may not be an issue that involves reviewing Board decisions, so again, this may not be the right place (or at least, the right email thread) to bring this up. However, there's still a legitimate issue raised by the "unappealability" of certain decisions, which does need to be revisited in whatever the right place and time is. Greg Shatan On Tue, Mar 17, 2015 at 1:17 PM, Jacob Malthouse <jacob@bigroom.ca> wrote:
The IRP was never intended to be a mechanism to challenge the merits of new gTLD panel decisions.
Indeed, appeals mechanisms for new gTLD panel decisions were discussed by the community as early as v1 of the draft AGB in 2009. At the time, many comments from the comment focused on a concern that an appeals process would cause undue delay to the program as a whole.
See: https://archive.icann.org/en/topics/new-gtlds/agv1-analysis-public-comments-...
p87: *"It does not seem that the absence of an appeals process within the process conflicts with ICANN’s role in serving the public interest. There are various countervailing factors to consider in formulating the dispute resolution procedure. Adding a procedure for appeal would increase the cost and extend the duration of many – if not most – proceedings, thereby delaying the introduction of many new gTLDs. If on appeal, the determination is “reversed,” there would be an argument for extending the process even further, resulting in great uncertainty in the process."*
and
*"At this juncture, ICANN does not plan to introduce an appeals mechanism into the dispute resolution process that has been developed. ICANN has heard many comments about making sure the new gTLD program progresses as swiftly and efficiently as possible. A dispute process that does not include a separate appeals mechanism is intended to help minimize the delay of introduction of new gTLDs into the root zone."*
It is unfortunate that the neither ICANN nor the community foresaw that attempts would be made to use the IRP as an appeals process despite it clearly not being one, and despite the community guidance being that there should not be one.
Best, Jacob.
Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/
On 17 March 2015 at 06:32, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
This is exactly right. Since international law is, in the main as Dr. Lisse has said, an agreement between nation states and since, as well, there is almost no consensus on what the substantive content of international law is (beyond the very limited area of IHL) the idea of making ICANN subject to some amorphous idea of an international law is I think unworkable. ICANN is a limited purpose entity. It should be subject to the commercial agreements it makes (with contracted parties, mostly) and to the commitments it makes and/or are adopted by its “member/stakeholders” – that is, us. It cannot and should not be a vehicle for us pouring into it our dreams and hopes about human rights or some undefined public good.
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
<http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_med...>
*From:* David Post [mailto:david.g.post@gmail.com] *Sent:* Monday, March 16, 2015 5:49 PM *To:* Rahul Sharma *Cc:* Accountability Cross Community
*Subject:* Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
At 10:41 PM 3/15/2015, Rahul Sharma wrote:
+1Â David and Phil
Â
Since IRP is only meant to review if Board decisions are in line and consistent with procedures and principles established, and as such cannot challenge any Board decision, a Body that ensures that ICANN adheres to international laws, and if its decisions are legitimate or not  and should be challenged should be (1) an independent body, constituted by a process independent from ICANN and (2) and have expertise in international law, and not just commercial arbitration
Rahul: Just to be clear: it wasn't my understanding that there would be a body the "ensures that ICANN adheres to international laws." In my opinion (which may or may not be shared by others), an Independent Review Panel, which ensures that ICANN adheres to (a) its commitment to consensus decision-making (b) within the stated mission (i.e., only makes policies reasonably necessary for security and stability of the DNS), that will go a long way to keeping the Board within proper limits. I'm not convinced that a second body charged with enforcing international law would be helpful or necessary, and might just over-complicate the process. David
On 16 March 2015 at 05:10, Phil Corwin <psc@vlaw-dc.com> wrote:
That’s exactly right, David, and what we just saw in the IRP brought by Booking.com over the finding that .Hotels and .Hoteis were in the same new gTLD contention set
Â
The available accountability mechanisms were restricted to reviewing whether proper procedure had been observed, but could not reach the admittedly questionable merits of the original decision that found them confusingly similar at the gTLD level.
Â
So when should the merits of a Board decision be susceptible to modification or reversal, who has standing to bring such a challenge, and what should be the standard of review? Important questions, and not easy to answer.
Â
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
Â
Twitter: @VlawDC
Â
"Luck is the residue of design" -- Branch Rickey
Â
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of David Post
Sent: Sunday, March 15, 2015 9:26 AM
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
Â
At 08:16 PM 3/14/2015, Bruce Tonkin wrote:
Under its Articles of Incorporation ICANN already operates “for the benefit of the Internet community as a a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.â€Â   See: https://www.icann.org/en/about/governance/articles <https://wwww.icann.org/en/about/governance/articles>
The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws.
[SNIP]
Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws. See Bylaws, Art IV sec 3(4):
"The IRP Panel must apply a defined standard of review to the IRP request, focusing on:
1. did the Board act without conflict of interest in taking its decision?;
2. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and
3. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"
That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example.
David
*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose) http://tinyurl.com/c327w2n     <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>
music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com       <http://??>
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Accountability-Cross-Community mailing list
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic <http://tinyurl.com/davidpostmusic%A0>publications etc. http://www.davidpost.com
*******************************
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Hello Greg,
The idea that gTLD panel decisions should be unappealable might have seemed reasonable in the abstract. In practice, it has turned out to enshrine and insulate inconsistent and poorly reasoned decisions. This may not be the right forum for revisiting that decision, as opposed to New gTLD Program review processes. Furthermore, this may not be an issue that involves reviewing Board decisions, so again, this may not be the right place (or at least, the right email thread) to bring this up.
However, there's still a legitimate issue raised by the "unappealability" of certain decisions, which does need to be revisited in whatever the right place and time is.
Yes the lack of an appeal process within the new gTLD program has basically shifted the focus to the Board. I.e. parties unhappy with an independent panel decision have escalated it to a Board panel (reconsideration process). The reconsideration process did not include reviewing an independent panel decision on its merits (the Board doesn't actually have the subject matter expertise to review most panel decisions on their merits) – but instead involves reviewing that the panel followed the dispute process properly. Then IRP is then used to appeal the Board reconsideration decision. The root cause in these cases is the lack of an ability to appeal an independent panel decision within the new gTLD program on its merits. Regards, Bruce Tonkin
Hi Bruce, wouldn't someone just go all the way to IRP anyway even if there was a new gTLD appeal? No one's going to voluntarily stop at appeal #1 if appeal #2 is still on the table. Best, J. Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/ On 17 March 2015 at 15:26, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Greg,
The idea that gTLD panel decisions should be unappealable might have seemed reasonable in the abstract. In practice, it has turned out to enshrine and insulate inconsistent and poorly reasoned decisions. This may not be the right forum for revisiting that decision, as opposed to New gTLD Program review processes. Furthermore, this may not be an issue that involves reviewing Board decisions, so again, this may not be the right place (or at least, the right email thread) to bring this up.
However, there's still a legitimate issue raised by the "unappealability" of certain decisions, which does need to be revisited in whatever the right place and time is.
Yes the lack of an appeal process within the new gTLD program has basically shifted the focus to the Board. I.e. parties unhappy with an independent panel decision have escalated it to a Board panel (reconsideration process). The reconsideration process did not include reviewing an independent panel decision on its merits (the Board doesn't actually have the subject matter expertise to review most panel decisions on their merits) – but instead involves reviewing that the panel followed the dispute process properly. Then IRP is then used to appeal the Board reconsideration decision. The root cause in these cases is the lack of an ability to appeal an independent panel decision within the new gTLD program on its merits.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I think the point is that there is so much at stake in these applications that their legal teams would use any available mechanism to have adverse decisions examined. Bruce will be able to confirm this, but it is my understanding that it was anticipated that this would happen, although of course no one was really able to say what form they would use to appeal adverse decisions. My review of the reconsideration decisions, and of the IRP decisions to date, is that ICANN has been faced with some very creative legal submissions, but which are really based on economic considerations of seeking to obtain financial advantage with the new strings. To put this in context, this is one specific project which has stretched the accountability functions in a way not previously used. But I wonder whether this particular use of the functions is in reality abnormal and that looking forward, to what extent do we need to anticipate similar creative approaches to use of the accountability functions. Chris LaHatte Ombudsman Blog https://omblog.icann.org/ Webpage http://www.icann.org/en/help/ombudsman Confidentiality All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jacob Malthouse Sent: Wednesday, March 18, 2015 11:55 AM To: bruce.tonkin@melbourneit.com.au Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law" Hi Bruce, wouldn't someone just go all the way to IRP anyway even if there was a new gTLD appeal? No one's going to voluntarily stop at appeal #1 if appeal #2 is still on the table. Best, J. Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/ On 17 March 2015 at 15:26, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> > wrote: Hello Greg,
The idea that gTLD panel decisions should be unappealable might have seemed reasonable in the abstract. In practice, it has turned out to enshrine and insulate inconsistent and poorly reasoned decisions. This may not be the right forum for revisiting that decision, as opposed to New gTLD Program review processes. Furthermore, this may not be an issue that involves reviewing Board decisions, so again, this may not be the right place (or at least, the right email thread) to bring this up.
However, there's still a legitimate issue raised by the "unappealability" of certain decisions, which does need to be revisited in whatever the right place and time is.
Yes the lack of an appeal process within the new gTLD program has basically shifted the focus to the Board. I.e. parties unhappy with an independent panel decision have escalated it to a Board panel (reconsideration process). The reconsideration process did not include reviewing an independent panel decision on its merits (the Board doesn't actually have the subject matter expertise to review most panel decisions on their merits) – but instead involves reviewing that the panel followed the dispute process properly. Then IRP is then used to appeal the Board reconsideration decision. The root cause in these cases is the lack of an ability to appeal an independent panel decision within the new gTLD program on its merits. 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
There is another possibility other than the (ICANN only) mindset that anyone that challenges ICANN is duplicitous. And that is: a poor decision was made and the people at the wrong end of it imagine that on review it will be revised. Kieren - [sent through phone] On Tue, Mar 17, 2015 at 4:04 PM, Chris LaHatte <chris.lahatte@icann.org> wrote:
I think the point is that there is so much at stake in these applications that their legal teams would use any available mechanism to have adverse decisions examined. Bruce will be able to confirm this, but it is my understanding that it was anticipated that this would happen, although of course no one was really able to say what form they would use to appeal adverse decisions. My review of the reconsideration decisions, and of the IRP decisions to date, is that ICANN has been faced with some very creative legal submissions, but which are really based on economic considerations of seeking to obtain financial advantage with the new strings. To put this in context, this is one specific project which has stretched the accountability functions in a way not previously used. But I wonder whether this particular use of the functions is in reality abnormal and that looking forward, to what extent do we need to anticipate similar creative approaches to use of the accountability functions.
Chris LaHatte Ombudsman Blog https://omblog.icann.org/ Webpage http://www.icann.org/en/help/ombudsman
Confidentiality All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jacob Malthouse Sent: Wednesday, March 18, 2015 11:55 AM To: bruce.tonkin@melbourneit.com.au Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
Hi Bruce, wouldn't someone just go all the way to IRP anyway even if there was a new gTLD appeal? No one's going to voluntarily stop at appeal #1 if appeal #2 is still on the table. Best, J.
Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/
On 17 March 2015 at 15:26, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> > wrote: Hello Greg,
The idea that gTLD panel decisions should be unappealable might have seemed reasonable in the abstract. In practice, it has turned out to enshrine and insulate inconsistent and poorly reasoned decisions. This may not be the right forum for revisiting that decision, as opposed to New gTLD Program review processes. Furthermore, this may not be an issue that involves reviewing Board decisions, so again, this may not be the right place (or at least, the right email thread) to bring this up. However, there's still a legitimate issue raised by the "unappealability" of certain decisions, which does need to be revisited in whatever the right place and time is. Yes the lack of an appeal process within the new gTLD program has basically shifted the focus to the Board. I.e. parties unhappy with an independent panel decision have escalated it to a Board panel (reconsideration process). The reconsideration process did not include reviewing an independent panel decision on its merits (the Board doesn't actually have the subject matter expertise to review most panel decisions on their merits) – but instead involves reviewing that the panel followed the dispute process properly. Then IRP is then used to appeal the Board reconsideration decision. The root cause in these cases is the lack of an ability to appeal an independent panel decision within the new gTLD program on its merits. 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
One consideration would be in certain situations the appellant may not have the funds to progress to an IRP. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jacob Malthouse Sent: Tuesday, March 17, 2015 10:55 PM To: Bruce Tonkin Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law" Hi Bruce, wouldn't someone just go all the way to IRP anyway even if there was a new gTLD appeal? No one's going to voluntarily stop at appeal #1 if appeal #2 is still on the table. Best, J. Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/ On 17 March 2015 at 15:26, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Greg,
The idea that gTLD panel decisions should be unappealable might have seemed reasonable in the abstract. In practice, it has turned out to enshrine and insulate inconsistent and poorly reasoned decisions. This may not be the right forum for revisiting that decision, as opposed to New gTLD Program review processes. Furthermore, this may not be an issue that involves reviewing Board decisions, so again, this may not be the right place (or at least, the right email thread) to bring this up.
However, there's still a legitimate issue raised by the "unappealability" of certain decisions, which does need to be revisited in whatever the right place and time is.
Yes the lack of an appeal process within the new gTLD program has basically shifted the focus to the Board. I.e. parties unhappy with an independent panel decision have escalated it to a Board panel (reconsideration process). The reconsideration process did not include reviewing an independent panel decision on its merits (the Board doesn't actually have the subject matter expertise to review most panel decisions on their merits) – but instead involves reviewing that the panel followed the dispute process properly. Then IRP is then used to appeal the Board reconsideration decision. The root cause in these cases is the lack of an ability to appeal an independent panel decision within the new gTLD program on its merits. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thanks Chris well said. Email is not the best means for discussion so should be clear am not trying to be combative, merely prudent given my experience with this project to date. Given the choice between assuming that humans will be creative or not creative, I tend towards creative, especially when it comes to adversity. So we should plan for that especially carefully given this groups work sets the stage for a larger transition. Best, J. Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/ On 17 March 2015 at 16:04, Chris LaHatte <chris.lahatte@icann.org <javascript:_e(%7B%7D,'cvml','chris.lahatte@icann.org');>> wrote:
I think the point is that there is so much at stake in these applications that their legal teams would use any available mechanism to have adverse decisions examined. Bruce will be able to confirm this, but it is my understanding that it was anticipated that this would happen, although of course no one was really able to say what form they would use to appeal adverse decisions. My review of the reconsideration decisions, and of the IRP decisions to date, is that ICANN has been faced with some very creative legal submissions, but which are really based on economic considerations of seeking to obtain financial advantage with the new strings. To put this in context, this is one specific project which has stretched the accountability functions in a way not previously used. But I wonder whether this particular use of the functions is in reality abnormal and that looking forward, to what extent do we need to anticipate similar creative approaches to use of the accountability functions.
Chris LaHatte
Ombudsman
Blog https://omblog.icann.org/
Webpage http://www.icann.org/en/help/ombudsman
Confidentiality
All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint
*From:* accountability-cross-community-bounces@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces@icann.org');> [mailto:accountability-cross-community-bounces@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces@icann.org');>] *On Behalf Of *Jacob Malthouse *Sent:* Wednesday, March 18, 2015 11:55 AM *To:* bruce.tonkin@melbourneit.com.au <javascript:_e(%7B%7D,'cvml','bruce.tonkin@melbourneit.com.au');> *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"
Hi Bruce, wouldn't someone just go all the way to IRP anyway even if there was a new gTLD appeal? No one's going to voluntarily stop at appeal #1 if appeal #2 is still on the table. Best, J.
Jacob Malthouse
Co-founder & Director, Big Room Inc.
778-960-6527
On 17 March 2015 at 15:26, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <javascript:_e(%7B%7D,'cvml','Bruce.Tonkin@melbourneit.com.au');>> wrote:
Hello Greg,
The idea that gTLD panel decisions should be unappealable might have seemed reasonable in the abstract. In practice, it has turned out to enshrine and insulate inconsistent and poorly reasoned decisions. This may not be the right forum for revisiting that decision, as opposed to New gTLD Program review processes. Furthermore, this may not be an issue that involves reviewing Board decisions, so again, this may not be the right place (or at least, the right email thread) to bring this up.
However, there's still a legitimate issue raised by the "unappealability" of certain decisions, which does need to be revisited in whatever the right place and time is.
Yes the lack of an appeal process within the new gTLD program has basically shifted the focus to the Board. I.e. parties unhappy with an independent panel decision have escalated it to a Board panel (reconsideration process). The reconsideration process did not include reviewing an independent panel decision on its merits (the Board doesn't actually have the subject matter expertise to review most panel decisions on their merits) – but instead involves reviewing that the panel followed the dispute process properly. Then IRP is then used to appeal the Board reconsideration decision. The root cause in these cases is the lack of an ability to appeal an independent panel decision within the new gTLD program on its merits.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 http://www.bigroom.ca/
participants (10)
-
Bruce Tonkin -
Carrie -
Chris LaHatte -
David Post -
Greg Shatan -
Jacob Malthouse -
James Gannon -
Kavouss Arasteh -
Kieren McCarthy -
Paul Rosenzweig