I’d like to echo Paul’s concerns, which I share, and his suggestion that Council ask the Board to pause for further discussion. I note that this is on the agenda for a Special Board Meeting tomorrow. If staff can be instructed to disapply the IRP and RfR by contract, rather than the community going through the formal process to approve a targeted Bylaws change, that sets a concerning precedent. Furthermore: * Doesn’t this place Org in a position where the Bylaws allow for these accountability mechanisms to apply, but a staff action purports to contravene the Bylaws, which itself could be challenged? * I also share the concern that Anne has raised that while this might catch the applicant who agrees to the terms, it would not cover a third party who had not signed on to the terms and who might seek to challenge a Grant award to someone else. It seems that the CCWG considered how best to handle disapplying these accountability mechanisms and concluded that a Bylaws change was the right way forward. Seeking to shortcut this by using the T&Cs appears to be an unsatisfactory alternative. thanks Susan Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255 [cid:image001.png@01D9BFEA.9E26DDA0]<https://comlaude.com/> We are pleased to launch our new YouTube channel<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0> From: council <council-bounces@gnso.icann.org> On Behalf Of Paul McGrady via council Sent: Friday, July 21, 2023 9:19 PM To: council@gnso.icann.org Cc: gnso-secs@icann.org Subject: [council] Fwd: Message from Tripti Sinha to Former CCWG-AP Members Hi All, I have reservations about this. While a narrowly tailored amendment to the Bylaws would have resulted in a carve out of the Accountability Mechanisms related solely to the grant program which would not be easily replicated for other programs and issues, instructing Staff to do this in a contract sets a very worrying precedent and opens the door for other future instances where Staff could be instructed to use contracts and/or the renewals of contracts to carve out the accountability mechanisms, making them a de facto nullity and undoing the work of the Accountability CCWG. I think the Council should ask the Board to hold on this and engage in a community dialogue prior to taking further action. Best, Paul On Thu, Jul 20, 2023 at 6:24 AM Wendy Profit <wendy.profit@icann.org<mailto:wendy.profit@icann.org>> wrote: Sending on behalf of ICANN Board Chair, Tripti Sinha… Dear Former CCWG-AP Members, (in bcc) In follow up to the update email from Xavier Calvez, I am writing to you as Chair of the ICANN Board to update you on the Board’s discussions at its workshop during ICANN77. During this workshop, the ICANN Board discussed with ICANN org how to best implement Recommendation #7 of the Final Report. As a reminder, part of Recommendation #7 stated that ICANN’s existing accountability mechanisms – the Independent Review Process (IRP) or the Reconsideration Process – could not be used to challenge decisions made by the Independent Applications Assessment Panel on individual applications within the Grant Program. To allow this would add unnecessary complexity to the program. Additionally, the total available funding for the program could also be depleted by the cost of such challenges. The CCWG-AP (and the Board as well, as indicated in our June 2022 action on the CCWG-AP’s Final Report) assumed that the best way to restrict the use of ICANN’s accountability mechanisms in this way would be to amend the ICANN Bylaws to create a “carve-out.” This would therefore require a Fundamental Bylaws Amendment. After exploring this issue more in-depth, I am happy to share with you that the Board and ICANN org identified a path that both upholds the CCWG-AP’s recommendation that individual application decisions should not be challenged through ICANN’s accountability mechanisms, while also keeping ICANN’s accountability mechanisms unchanged within the Bylaws. The Board is planning to take action on this later this month; however, I wanted to provide you with a preview. The Board will direct ICANN org to use the contractual terms and conditions required to apply for the Grant Program to obtain applicant agreement that they cannot use ICANN’s accountability mechanisms to challenge any individual decision taken on their application within the ICANN Grant Program. This remains in line with the CCWG-AP’s recommendation regarding the accountability mechanisms as well as the intention to lower complexity and protect the total amount of proceeds available for applicants. When the CCWG-AP made Recommendation #7, it also provided guidance that providing limited opportunity for review of decisions within the Grant Program might also introduce complexity, and encouraged ICANN to not make such opportunities available. However, when considering the inability for applicants to use ICANN’s accountability mechanisms for individual decisions, the ICANN Board will also ask ICANN org to explore whether there are appropriate interim opportunities within the evaluation process for applicants to ask for a limited procedural review. The Board hopes this will enhance ICANN’s accountability to applicants, while following best practices within grant making programs. We are happy to have identified a path forward that preserves the CCWG-AP’s recommendation and enhances accountability to applicants and the wider Internet community. The Bylaws are important to us, and we are confident that we can keep up ICANN’s accountability, as set up, while at the same time limiting the ability to challenge for individual selection decisions. The Board is following ICANN org’s implementation closely and looks forward to seeing this program launch next year. Thank you again for your time and efforts that went into envisioning this exciting program. The establishment of the ICANN Grant Program is a testament to your commitment to the work of the CCWG-AP and is an excellent representation of the multistakeholder model in action. Kind Regards, Tripti Sinha Chair, ICANN Board of Directors This email originated from outside the firm. Please use caution. ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. 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