I had a different expectation of what a 'stress test' would be. So I am clear, a stress test is just a conversation of hypotheticals of what could go wrong? Sincerely Carrie Devorah On Sun, Mar 15, 2015 at 6:55 PM, Phil Buckingham <phil@dotadvice.co.uk> wrote:

David,

Perhaps……

+ 4. did the Board act/ vote unanimously. Were there abstensions – (through potential conflict of interest)

Regards,

Phil

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *David Post *Sent:* 15 March 2015 13:26 *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 whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.†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:

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

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-- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow

+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 ICANN shouldn't be involved, or shouldn't have any influence in IRP constitution or its working. We should have something like the International Court of Justice or International Law Commission or something that provides a bench which should be the appeals mechanism. There could often be other issues involved about possible non adherence to international laws, other than matters of trade and commerce. Regards, Rahul Sharma 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

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] *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 whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.” 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:

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

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Hello Arun,

...

1. Its interesting to note the international instruments the gTLD handbook highlights as 'relevant' mostly involve state parties. Given the absence of specific remedies to the community, the purpose of citing ICANN's adherence to them is unclear. Every corporation, transnational or not, is expected to comply with these treaties as long as their host state is a signatory (the US is not a party to the Child Rights Convention btw)

The context of the list – was that these were used as a basis for dispute resolution on a global basis. If for example a gTLD name contained a racist phrase – the dispute resolution mechanisms could be used to prevent that top level domain name from being delegated. In the context of the Articles of Incorporation – you are right that the organization must adhere to local laws that have been created following the agreement to an international treaty. However through its Articles of Incorporation ICANN is not just limited to those local laws with respect to decision making. Ie it was intended that it should be possible to challenge an ICANN decision if it was against relevant principles of international law and applicable international conventions that may not necessarily be encapsulated in local law. Note that much of the current reconsideration requests and IRP panel processes are the result of the Board accepting a decision from an independent panel. What these complainants want is a reconsideration of the original panel decision on its merits – and this is not what the current mechanisms support.

...

2. The CCWG should distil principles from general instruments, rather than using broad diplomatic jargon like "relevant" international laws. If there are specific international laws that apply to transnational corporations which may prove useful to apply in ICANN's case, those too should be addressed. Happy to contribute in this exercise.

Agreed. I think it is very important to provide explicit examples where we can. However it is probably also useful to including language such as the following is a list of international laws that may apply but the list is not limited to that list. The overall standard should probably still be " relevant principles of international law and applicable international conventions" to allow flexibility if something is missed from the list. That was the approach used in the applicant guidebook with respect to the Limited Public Interest dispute process. Regards, Bruce Tonkin .