Appeals Standard of Review
All, One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are "De Novo" or "Clearly Erroneous." 1. Under a "De Novo" standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time. 1. Under a "Clearly Erroneous" standard of review, the appeals panel must accept the evaluator's or dispute panel's findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator's/dispute panel's decision will only be reversed if it is implausible in light of all the evidence. In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals: 1. Evaluations * Background Screening * String Similarity * DNS Stability * Geographic Names * Technical / Operational Evaluation * Financial Evaluation * Registry Services * Applicant Support * Community Priority Evaluation 1. Objections * String Confusion * Legal Rights Objection * Limited Public Interest * Community Objection * Conflict of Interest of Panelists. My personal recommendation is that all appeals except for the Conflict of Interest appeals have a "Clearly Erroneous" standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made. Thoughts? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> [cid:image003.jpg@01D5833A.5E4EC4E0] ________________________________ 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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>
(Not a leadership or SG position) While I originally was more inclined to apply "Clearly Erroneous" across the board, I found value the application of "De Novo" to conflict of interest determinations. Rubens
On 15 Oct 2019, at 10:24, Jeff Neuman <jeff.neuman@comlaude.com> wrote:
All,
One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.”
Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time.
Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence.
In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals:
Evaluations Background Screening String Similarity DNS Stability Geographic Names Technical / Operational Evaluation Financial Evaluation Registry Services Applicant Support Community Priority Evaluation
Objections String Confusion Legal Rights Objection Limited Public Interest Community Objection Conflict of Interest of Panelists.
My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made.
Thoughts?
Jeff Neuman Senior Vice President
Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA
M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> www.comlaude.com <http://www.comlaude.com/>
<image003.jpg>
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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com/>_______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg <https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://www.icann.org/privacy/policy>) and the website Terms of Service (https://www.icann.org/privacy/tos <https://www.icann.org/privacy/tos>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Jeff - on you recommendation - . ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. Do we know what the screening process was last go around? For example - how was the Economist Intelligence Unit selected? Was there an RFP issued? If so what were those terms? CPE was a particularly painful exercise for more than a few applicants so yes - I'm sort of picking on that one but it would be illustrative to the others. I do know there was a tender process for the Independent Objector. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jeff Neuman Sent: Tuesday, October 15, 2019 9:25 AM To: gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] Appeals Standard of Review All, One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are "De Novo" or "Clearly Erroneous." 1. Under a "De Novo" standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time. 1. Under a "Clearly Erroneous" standard of review, the appeals panel must accept the evaluator's or dispute panel's findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator's/dispute panel's decision will only be reversed if it is implausible in light of all the evidence. In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals: 1. Evaluations * Background Screening * String Similarity * DNS Stability * Geographic Names * Technical / Operational Evaluation * Financial Evaluation * Registry Services * Applicant Support * Community Priority Evaluation 1. Objections * String Confusion * Legal Rights Objection * Limited Public Interest * Community Objection * Conflict of Interest of Panelists. My personal recommendation is that all appeals except for the Conflict of Interest appeals have a "Clearly Erroneous" standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made. Thoughts? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> [cid:image003.jpg@01D58377.204A1310] ________________________________ 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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>
Good morning: Just to rappel my most recent chat contribution: evaluators/panelists should be individuals, not companies. In other respects, supporting Jim’s questions. CW
On 15 Oct 2019, at 22:39, Jim Prendergast <jim@GALWAYSG.COM <mailto:jim@GALWAYSG.COM>> wrote:
Jeff – on you recommendation - . ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given.
Do we know what the screening process was last go around? For example – how was the Economist Intelligence Unit selected? Was there an RFP issued? If so what were those terms?
CPE was a particularly painful exercise for more than a few applicants so yes – I’m sort of picking on that one but it would be illustrative to the others. I do know there was a tender process for the Independent Objector.
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Tuesday, October 15, 2019 9:25 AM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Appeals Standard of Review
All,
One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.”
Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time.
Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence.
In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novostandard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals:
Evaluations Background Screening String Similarity DNS Stability Geographic Names Technical / Operational Evaluation Financial Evaluation Registry Services Applicant Support Community Priority Evaluation
Objections String Confusion Legal Rights Objection Limited Public Interest Community Objection Conflict of Interest of Panelists.
My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made.
Thoughts?
Jeff Neuman Senior Vice President
Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA
M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> www.comlaude.com <http://www.comlaude.com/>
<image003.jpg>
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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com/>_______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg <https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://www.icann.org/privacy/policy>) and the website Terms of Service (https://www.icann.org/privacy/tos <https://www.icann.org/privacy/tos>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Agree with You Christopher. Individuals for sure, less possibility of conflict Vanda Scartezini Polo Consultores Associados Av. Paulista 1159, cj 1004 01311-200- Sao Paulo, SP, Brazil Land Line: +55 11 3266.6253 Mobile: + 55 11 98181.1464 Sorry for any typos. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of "lists@christopherwilkinson.eu" <lists@christopherwilkinson.eu> Date: Wednesday, October 16, 2019 at 15:44 To: Jim Prendergast <jim@GALWAYSG.COM> Cc: Gnso-newgtld-wg <gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review Good morning: Just to rappel my most recent chat contribution: evaluators/panelists should be individuals, not companies. In other respects, supporting Jim’s questions. CW On 15 Oct 2019, at 22:39, Jim Prendergast <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>> wrote: Jeff – on you recommendation - . ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. Do we know what the screening process was last go around? For example – how was the Economist Intelligence Unit selected? Was there an RFP issued? If so what were those terms? CPE was a particularly painful exercise for more than a few applicants so yes – I’m sort of picking on that one but it would be illustrative to the others. I do know there was a tender process for the Independent Objector. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Tuesday, October 15, 2019 9:25 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Appeals Standard of Review All, One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.” 1. Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time. 2. Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence. In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novostandard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals: a. Evaluations a. Background Screening b. String Similarity c. DNS Stability d. Geographic Names e. Technical / Operational Evaluation f. Financial Evaluation g. Registry Services h. Applicant Support i. Community Priority Evaluation b. Objections a. String Confusion b. Legal Rights Objection c. Limited Public Interest d. Community Objection e. Conflict of Interest of Panelists. My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made. Thoughts? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> <image003.jpg> ________________________________ 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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com/> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Good afternoon: Until we have much greater clarity as to the identification and appointment of the individuals who will serve on the evaluation/dispute panels, I would not trust the objectivity of the “Clearly Erroneous" Standard. Accordingly: "De Novo" across the board. As to costs, expenses plus a per diem, on an individual basis, should suffice. Regards CW
On 15 Oct 2019, at 15:24, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> wrote:
All,
One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.”
Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time.
Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence.
In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals:
Evaluations Background Screening String Similarity DNS Stability Geographic Names Technical / Operational Evaluation Financial Evaluation Registry Services Applicant Support Community Priority Evaluation
Objections String Confusion Legal Rights Objection Limited Public Interest Community Objection Conflict of Interest of Panelists.
My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made.
Thoughts?
Jeff Neuman Senior Vice President
Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA
M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> www.comlaude.com <http://www.comlaude.com/>
<image003.jpg>
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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com/> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg <https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://www.icann.org/privacy/policy>) and the website Terms of Service (https://www.icann.org/privacy/tos <https://www.icann.org/privacy/tos>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Hi Christopher… What do you mean by “per diem”? To whom would this “per diem” go? Is someone traveling and incurring daily costs? I’m very confused. Kristine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of lists@christopherwilkinson.eu Sent: Sunday, October 27, 2019 9:27 AM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review Good afternoon: Until we have much greater clarity as to the identification and appointment of the individuals who will serve on the evaluation/dispute panels, I would not trust the objectivity of the “Clearly Erroneous" Standard. Accordingly: "De Novo" across the board. As to costs, expenses plus a per diem, on an individual basis, should suffice. Regards CW On 15 Oct 2019, at 15:24, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.” 1. Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time. 1. Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence. In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals: 1. Evaluations * Background Screening * String Similarity * DNS Stability * Geographic Names * Technical / Operational Evaluation * Financial Evaluation * Registry Services * Applicant Support * Community Priority Evaluation 1. Objections * String Confusion * Legal Rights Objection * Limited Public Interest * Community Objection * Conflict of Interest of Panelists. My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made. Thoughts? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> <image003.jpg> ________________________________ 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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com/> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
Dear Kristine: I think ICANN is familiar with the concept of a daily fee for services rendered. Regards Christopher
On 28 Oct 2019, at 16:30, Dorrain, Kristine <dorraink@amazon.com <mailto:dorraink@amazon.com>> wrote:
Hi Christopher…
What do you mean by “per diem”? To whom would this “per diem” go? Is someone traveling and incurring daily costs? I’m very confused.
Kristine
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> Sent: Sunday, October 27, 2019 9:27 AM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review
Good afternoon: Until we have much greater clarity as to the identification and appointment of the individuals who will serve on the evaluation/dispute panels, I would not trust the objectivity of the “Clearly Erroneous" Standard.
Accordingly: "De Novo" across the board. As to costs, expenses plus a per diem, on an individual basis, should suffice.
Regards
CW
On 15 Oct 2019, at 15:24, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> wrote:
All,
One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.”
Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time.
Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence.
In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals:
Evaluations Background Screening String Similarity DNS Stability Geographic Names Technical / Operational Evaluation Financial Evaluation Registry Services Applicant Support Community Priority Evaluation
Objections String Confusion Legal Rights Objection Limited Public Interest Community Objection Conflict of Interest of Panelists.
My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made.
Thoughts?
Jeff Neuman Senior Vice President
Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA
M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> www.comlaude.com <http://www.comlaude.com/>
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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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com <https://comlaude.com/> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg <https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://www.icann.org/privacy/policy>) and the website Terms of Service (https://www.icann.org/privacy/tos <https://www.icann.org/privacy/tos>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
To whom? Who gets this fee? ICANN? From: lists@christopherwilkinson.eu <lists@christopherwilkinson.eu> Sent: Monday, October 28, 2019 12:27 PM To: Dorrain, Kristine <dorraink@amazon.com> Cc: Jeff Neuman <jeff.neuman@comlaude.com>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review Dear Kristine: I think ICANN is familiar with the concept of a daily fee for services rendered. Regards Christopher On 28 Oct 2019, at 16:30, Dorrain, Kristine <dorraink@amazon.com<mailto:dorraink@amazon.com>> wrote: Hi Christopher… What do you mean by “per diem”? To whom would this “per diem” go? Is someone traveling and incurring daily costs? I’m very confused. Kristine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> Sent: Sunday, October 27, 2019 9:27 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review Good afternoon: Until we have much greater clarity as to the identification and appointment of the individuals who will serve on the evaluation/dispute panels, I would not trust the objectivity of the “Clearly Erroneous" Standard. Accordingly: "De Novo" across the board. As to costs, expenses plus a per diem, on an individual basis, should suffice. Regards CW On 15 Oct 2019, at 15:24, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.” 1. Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time. 1. Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence. In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals: 1. Evaluations * Background Screening * String Similarity * DNS Stability * Geographic Names * Technical / Operational Evaluation * Financial Evaluation * Registry Services * Applicant Support * Community Priority Evaluation 1. Objections * String Confusion * Legal Rights Objection * Limited Public Interest * Community Objection * Conflict of Interest of Panelists. My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made. Thoughts? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> <image003.jpg> ________________________________ 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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com/> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
I agree that a conflict of interest issue should be reviewed de novo. But I think that some other standard should apply for the substantive determination. The tough aspect of this is adopting what is in essence a judicial review standard but without any precedents to follow. “Clearly erroneous” and “abuse of discretion” are judicial standards that have precedent against which the decision can be checked but here we don’t have precedent in these determinations and we have inconsistent prior decisions. On balance, in terms of the substantive determination, I would tend to leave an Objection ruling in place unless (1) the panel failed to follow the appropriate procedures or (2) failed to consider/solicit necessary material evidence or information. I still think there is a problem in relation to appeals of ICANN staff decisions since those are most likely going to be eligible simultaneously for Request for Reconsideration and no good lawyer is going to fail to file for both remedies when both are available. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of lists@christopherwilkinson.eu Sent: Monday, October 28, 2019 12:27 PM To: Dorrain, Kristine <dorraink@amazon.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review [EXTERNAL] ________________________________ Dear Kristine: I think ICANN is familiar with the concept of a daily fee for services rendered. Regards Christopher On 28 Oct 2019, at 16:30, Dorrain, Kristine <dorraink@amazon.com<mailto:dorraink@amazon.com>> wrote: Hi Christopher… What do you mean by “per diem”? To whom would this “per diem” go? Is someone traveling and incurring daily costs? I’m very confused. Kristine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> Sent: Sunday, October 27, 2019 9:27 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review Good afternoon: Until we have much greater clarity as to the identification and appointment of the individuals who will serve on the evaluation/dispute panels, I would not trust the objectivity of the “Clearly Erroneous" Standard. Accordingly: "De Novo" across the board. As to costs, expenses plus a per diem, on an individual basis, should suffice. Regards CW On 15 Oct 2019, at 15:24, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.” 1. Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time. 1. Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence. In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals: 1. Evaluations * Background Screening * String Similarity * DNS Stability * Geographic Names * Technical / Operational Evaluation * Financial Evaluation * Registry Services * Applicant Support * Community Priority Evaluation 1. Objections * String Confusion * Legal Rights Objection * Limited Public Interest * Community Objection * Conflict of Interest of Panelists. My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made. Thoughts? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> <image003.jpg> ________________________________ 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. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com/> _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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Good afternoon: Until we have much greater clarity as to the identification and appointment of the individuals who will serve on the evaluation/dispute panels, I would not trust the objectivity of the “Clearly Erroneous" Standard. Accordingly: "De Novo" across the board. As to costs, expenses plus a per diem, on an individual basis should suffice. Regards CW
On 15 Oct 2019, at 15:24, Jeff Neuman <jeff.neuman@comlaude.com> wrote:
All,
One of the remaining topics for Appeals is to determine what the standard of review should be. The choices discussed are “De Novo” or “Clearly Erroneous.”
Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel. It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions. It would be as if the appeals panel is hearing the facts for the first time.
Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence.
In theory it could be possible to have different standards of review depending on what is the issue being appealed. For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous. As a reminder, here are the different types of appeals:
Evaluations Background Screening String Similarity DNS Stability Geographic Names Technical / Operational Evaluation Financial Evaluation Registry Services Applicant Support Community Priority Evaluation
Objections String Confusion Legal Rights Objection Limited Public Interest Community Objection Conflict of Interest of Panelists.
My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a De Novo Standard. To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications. ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given. But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made.
Thoughts?
Jeff Neuman Senior Vice President
Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA
M: +1.202.549.5079 D: +1.703.635.7514 E: jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> www.comlaude.com <http://www.comlaude.com/>
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participants (7)
-
Aikman-Scalese, Anne -
Dorrain, Kristine -
Jeff Neuman -
Jim Prendergast -
lists＠christopherwilkinson.eu -
Rubens Kuhl -
Vanda Scartezini