Forwarding the email below to the general CWG-Stewardship mailing list. From: <cwg-client-bounces@icann.org> on behalf of Sharon Flanagan <sflanagan@sidley.com> Date: Wednesday, January 20, 2016 at 9:07 PM To: Client Committee <cwg-client@icann.org> Subject: [client com] FW: [CCWG-ACCT] PTI and the IRP Dear Client Committee, We wanted to flag for you a recent discussion on the CCWG list serve relating to the CWG requirement for an IRP process to cover PTI actions/inactions. The email chain is pasted below and includes input from Greg and Avri. Also, below is the language from the final CWG comment letter to CCWG on this point. We believe the approach highlighted in yellow could be a workable solution. ³As we noted in our comment letter to the Second Draft Proposal, the Third Draft Proposal does not explicitly address the CWG-Stewardship requirement that an independent review process be available for claims relating to actions or inactions of PTI. This requirement could be addressed in a number of ways. For example, a provision could be added to the ICANN Bylaws that would require ICANN to enforce its rights under the ICANN-PTI Contract/Statement of Work (SOW), with a failure by ICANN to address a material breach by PTI under the contract being grounds for an IRP process by the Empowered Community (after engagement and escalation). Another approach would be to expand and modify, as appropriate, the IRP process currently contemplated by the Third Draft Proposal to cover claims relating to actions or inactions of PTI, with the ICANN Bylaws and PTI governance documents expressly confirming that the IRP process is binding on PTI (which provisions would be Fundamental Bylaws that could not be amended without community approval). Regardless of approach, the CWG-Stewardship requires that this dependency be addressed in the final CCWG-Accountability proposal in order for the CWG-Stewardship to confirm that the conditions of the CWG-Stewardship final transition proposal have been adequately addressed.² As counsel to CCWG, we have a call with Becky Burr from CCWG on this topic tomorrow. If there is any additional guidance that CWG would like to provide on this topic beyond what was included in the comment letter, could you please let us know? Best regards, Holly and Sharon SHARON FLANAGAN Partner Sidley Austin LLP +1 415 772 1271 sflanagan@sidley.com From:accountability-cross-community-bounces@icann.orgOn Behalf OfBurr, Becky Sent: Wednesday, January 20, 2016 11:42:41 AM (UTC-08:00) Pacific Time (US & Canada) To: Schaefer, Brett; Greg Shatan; Avri Doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] PTI and the IRP I am willing to address this issue either way here. We just need clarification from the CWG as to its preference. Either we create a stand-alone standard of review (in which case I need help articulating) or we say (in the Bylaws) that ICANN is responsible for ensuring that PTI gets it right, and allow challenges via the IRP on the basis of ICANN¹s actions or inactions that fall below this standard. J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=CwMF- g&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=1 xdOjghwOaRYcxDPTuhZkMCTD7eRwKXzUuTnQOV8IMo&s=xy01Bx-Fh__bSI6ZDFiOqvA0_GlpT0j Ry5DUdZh1uvw&e=> From: <Schaefer>, Brett <Brett.Schaefer@heritage.org> Date: Wednesday, January 20, 2016 at 10:45 AM To: Greg Shatan <gregshatanipc@gmail.com>, Avri Doria <avri@acm.org> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] PTI and the IRP I agree and would add that DIDP appeals, although they potentially could involve a bylaws violation I suppose, would most often involve an independent review via IRP of the original decision to ensure that it was correct. It seems that the IRP is being stretched in the borrowing. At the very least, there needs to be clarification that on how the IRP should handle these matters if it is the proper vehicle and, if it is not, what exactly should be created to handle these matters. From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, January 20, 2016 12:36 AM To: Avri Doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] PTI and the IRP Avri, I agree with your analysis and share your concern. The PTI IRP is fundamentally not a Bylaws issue (or more accurately -- fundamentally not a "violation of the Bylaws" issue). Having "borrowed" the IRP in an attempt to fill the requirements of the CWG, we can't then pretend that the requirements of the CWG are coterminous with the general design of the IRP. The CWG's requirements will require a specific statement of the basis on which a claim may be brought -- and it is a different basis than for other IRP claims. This doesn't have to be long, but it does have to be right. Conversely, if we are truly wedded to the idea that the IRP is a "bylaws court" and nothing more, then it can't be used to satisfy the CWG's requirement and we will need to do something else. Personally, I don't endorse this position (though it does raise some concern about the ability of the panel to deal with PTI failures, if it is designed to be a bylaws court. That said, I have sufficient faith in the skill of experienced arbitrators to be able to resolve a variety of disputes.) Since this a requirement for the transition, we need to resolve this crisply, explicitly and appropriately. Greg On Wed, Jan 20, 2016 at 12:25 AM, Avri Doria <avri@acm.org> wrote: Hi, I am uncomfortable with closing the discussion of the new principles for the IRP. Since we decided not to create a new entity to serve the requirements of the CWG but rather to make it a function of the IRP, we need to make sure that the basis for the IRP is fit for purpose before starting on its implementation. The CWG calls for:
1. *Appeal mechanism*. An appeal mechanism, for example in the form of an Independent Review Panel, for issues relating to the IANA functions. For example, direct customers with non-remediated issues or matters referred by ccNSO or GNSO after escalation by the CSC will have access to an Independent Review Panel. The appeal mechanism will not cover issues relating to ccTLD delegation and re-delegation, which mechanism is to be developed by the ccTLD community post-transition.
I do not see how to define this function in terms of By Laws alone as By Laws have little to say about negotiated SLAs and the customers' or CSC complaints. Perhaps it can be done by changes to some of the By Laws, but I do not see us as having scoped out what those changes need to be. So until such time as we have dealt the the policy issues of filling the CWG's requirements, I would like to register a personal caution, and thus an objection, to closing the discussion of the basis and standing for IRP appeals. I do not believe this is merely an implementation issue. At least not yet. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.avast.com_antiviru s&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDD kMr4k&m=9zpJkUMQmkKK1JJZ4UjZmt9rbYe2_te6YMKJgHLAMCs&s=hrS-SjNieBsQS3g-4IaOCu qnhva_tsA1TDs8a0zMOOQ&e=> BrettSchaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__heritage.org_&d=CwMGaQ& c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=9zp JkUMQmkKK1JJZ4UjZmt9rbYe2_te6YMKJgHLAMCs&s=VeYpm4OC3DluvWT6BqP7fLSRT7eOV0sSm 9Vw5RR91S4&e=> _______________________________________________ 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=CwMGaQ&c=MOptNlVtIETeDALC_lULrw &r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=9zpJkUMQmkKK1JJZ4UjZmt9rbYe 2_te6YMKJgHLAMCs&s=L5e8VgjjxxQ3JnJo5baWM3AIcoofHz8l8EplNcQIZag&e=> **************************************************************************** ************************ This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************** ************************