Dear Working Group members, Please see below the notes from the meeting on 03 October 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-10-03+New+gTLD+Subsequent+Pro.... Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: Accountability Mechanisms: What are the types of actions or inactions that should be subject to this new limited appeals process? ACTION ITEM 1: Jeff will send a chart that begins to list some examples, such as if a panelist gets the facts wrong, misapplies the facts, takes an action in consistent with the AGB (or fails to take an action). Not looking at whether someone violated the Bylaws. Notes: 1. Updates to Statements of Interest: None provided. 2. Review of summary documents: a. Accountability Mechanisms -- See: https://docs.google.com/document/d/1BkRn9nYeBNjyx2mTw-3nIDn22jTumWd4w1PZR-KN..., page 17 What are the types of actions or inactions that should be subject to this new limited appeals process? -- Trying to distinguish between substance and procedure is not very helpful. Could be defined differently. More helpful to come up with examples that would be subject matter jurisdiction of an appeal. Noting elements in Jamie Baxter’s comments, ALAC, and most comments. -- Question: A list of examples would not be nonexclusive and illustrative only? Goal is to just have illustrative examples, we can’t promise that someone wouldn’t file something under the Bylaws that they shouldn’t be filing under the appeals. ACTION: Jeff will send a chart that begins to list some examples, such as if a panelist gets the facts wrong, misapplies the facts, takes an action in consistent with the AGB (or fails to take an action). Not looking at whether someone violated the Bylaws. -- If different panels come up with different answers on different occurrences is that grounds for appeal? -- What is out of scope for appeal? Probably easier to come up with a list of what is in scope. Could point to the Bylaws for what is out of scope. -- What about appeals that involved ICANN Org? In the AGB there is a void on how reconsideration requests (accountability mechanisms) are addressed when successful. If against staff or the Board that would fall under accountability mechanisms re: the Bylaws. But we can’t say that in cases where some of the activities are taken on by ICANN staff. -- Do think it makes sense that anything that could be objected to under the Bylaws should be objected to under the Bylaws, so we don’t get objections in two places. -- The standard for objections under the Bylaws is that Board or staff violated the Bylaws. -- If the just got it wrong, then it probably doesn’t fall under the Bylaws accountability mechanisms. -- We need the interlocutory appeals process so that actual relief can be granted before it is too late and not just have ICANN point back at the provider. -- We don't want to build an appeals process that erodes the accountability mechanisms. -- If we have a permanent new gTLD process, ICANN Org is considering bringing in house some of the tasks previously handled by third parties. -- Agree that only third party decisions should be subject to the appeals process. Otherwise there will be two actions filed, not one. ICANN would be nuts to in-house Objection proceedings. Lawyers will plead both the Accountability mechanisms and the appeal mechanisms. There will always be grey areas and ability to plead both mechanisms apply and it is wasteful. -- Doesn't it seem that ICANN doing Objections in-house would be subject to a further policy process. -- If we are talking about appeals we need to know what can be appealed. Bringing things in house and allowing them to go under accountability mechanisms under the Bylaws locks the appellee is locked out of it. Important to know when you can go to ICANN and when you can’t. Set some foundational principles. -- Very speculative to say we have to make policy based on what ICANN is discussing. There are good reasons for ICANN to keep Objections outside of the organization - namely independence of determinations. If ICANN is selecting panelists in Objection proceedings, those panelists, paid by ICANN, are subject to too much ICANN org influence. -- ICANN should maintain distance from substantive decisions, even string confusion. These are too close to regulation of content and it's outside ICANN's mission. -- Bylaw accountability mechanisms deals mostly with process - whether process was violated, it doesn't deal with the subject matter because it does not have expertise. Which is the problem in many cases. Who should have standing to file an appeal? Does this depend on the particular action or inaction? -- Example of parties: a) Applicant b) objection loser - Does this include Independent Objector? c) Someone in a contention set? d) ICANN Org? e) SOAC? f) public at-large? -- To clarify, on the last call when we talked about objections by ALAC being paid for, what we are talking about here is whether ICANN would pay for an appeal by the ALAC. -- On the standing issue, it sounds like everyone wants there to be a direct connection between the decision and a bad effect on the appealing party. In other words, no standing for anyone who just wants to harass an applicant. -- Shouldn’t losing applicants for the same string in a CPE have standing to appeal? Should the other applicants have standing that the decision by the CPE evaluator was wrong. -- Having the ability to appeal certainly doesn’t guarantee a decision will be reversed, especially if frivolous appeals are filtered out -- Logically, that makes sense, but if at all, they should ideally be joined in the same appeal to be heard by the same panel. What measures can be employed to ensure that frivolous appeals are not filed? What would be considered a frivolous appeal? -- General agreement at least for a quick look process to make sure the appeals aren’t frivolous. If there is an appeals process, how can we ensure that we do not have a system which allows multiple appeals? -- Can someone not happy about the appeal file an appeal of the appeal? -- Only exception might be where there is an erroneous conflict of interest decision. -- Outcome of appeal is always going to end up being subject to Accountability mechanisms since ICANN will act on the decision in the appeal. There should be interlocutory appeal of conflict of interest determination. -- What about limiting to one appeal and one request for reconsideration? -- Time is of the essence. The sooner we get to an answer the better, rather than drawing it out with multiple appeals. Who should bear the costs of an appeal? -- A lot of the commenters said the loser should pay. But if you failed an evaluation and you appeal, and the appeal says you shouldn’t have failed, who pays? -- Everyone should be held accountable. If it’s proven that the third party made a mistake then they should pay. -- Disagree; these are adjudicators and as long as it is within reasonable standards of right or wrong they shouldn’t have to pay. If there was gross negligence or misconduct then maybe the third party should pay. -- Impact of who would hear the appeal if the deciding body is stuck with the cost -- they shouldn’t hear the appeal if they are stuck with the cost if the appeal finds them to be in error. You wouldn’t find someone who was willing to take this on. If they get too many wrong ICANN can terminate them. What are the possible remedies for a successful appellant? -- Many commenters said that it depends on the nature of the appeal. -- Agreement that the remedy will be dependent upon what is being appealed. Usually some sort of reversal of the appealed decision.