Hi all, with regard to discussion on improvement for 3.7, please find attached the draft of lesson learned paper ( I highlight the word draft) to help us for our discussion and which complements Heather's comments. Best Regards, Rafik ---------- Forwarded message --------- De : Mary Wong <mary.wong@icann.org> Date: mar. 1 oct. 2019 à 14:04 Subject: Draft Section 3.7 "lessons learned" paper (Re: [GNSO-PDP3Dot0-DT] Fwd: Following up: "lessons learned" document from the Curative Rights procedural appeals) To: Rafik Dammak <rafik.dammak@gmail.com>, Heather Forrest < haforrestesq@gmail.com> Cc: Steve Chan <steve.chan@icann.org>, Ariel Liang <ariel.liang@icann.org> Dear Heather and Rafik, Given where the PDP3.0 discussions seem to be and the Drafting Team’s receipt of Heather’s notes (below), I thought it made sense for me to send you the current draft of the “lessons learned” paper that I have been hoping to complete in order to send it to Heather and Susan for their review and comments. Please see the attached draft, which, if Heather is amenable, you may wish to share with the Drafting Team on the understanding that it is still a draft document and that Susan has not yet seen it. You’ll see that I’ve gotten as far as addressing up to 4 or 5 of Heather’s questions; I had hoped to review the current PDP3.0 proposals in order to complete it but unfortunately have not had the bandwidth recently. I hope what I have prepared to date is helpful. Cheers Mary *From: *GNSO-PDP3Dot0-DT <gnso-pdp3dot0-dt-bounces@icann.org> on behalf of Rafik Dammak <rafik.dammak@gmail.com> *Date: *Tuesday, October 1, 2019 at 05:40 *To: *gnso-pdp3dot0-dt <gnso-pdp3dot0-dt@icann.org> *Cc: *Heather Forrest <haforrestesq@gmail.com> *Subject: *[GNSO-PDP3Dot0-DT] Fwd: Following up: "lessons learned" document from the Curative Rights procedural appeals Hi all, Heather kindly shared some bullet points about 3.7 I think useful for our call today to review Flip memo and give us some feedback based on real experience with that process. Best, Rafik ---------- Forwarded message --------- Hi Rafik, Pam, Sending you both my long laundry list of notes on 3.7, as I believe Mary's report hasn't been completed yet. Please feel free to share with the PDP 3.0 team and in particular Flip as leading the effort on 3.7. If I can be of any help to the team, just shout. H ---------- Forwarded message --------- Hi Mary, As always, without you, we'd be lost! Here are a few points that I would like to raise in terms of 'lessons learned': 1. Section 3.7 provides essentially three grounds for appeal: (i) a WG member "believes that his/her contributions are being systematically ignored or discounted" and (ii) a WG member wishes to appeal a decision of the WG or CO". In the second paragraph of 3.7, a third ground is raised, where the WG member "is of the opinion that someone is not performing their role according to the criteria outlined in s 2.2". The first step in the 3.7 process is a dialogue with the WG Chair. I believe that we are missing a key step here, which is that the aggrieved WG member who initiates section 3.7 should be asked to succinctly identify the factual circumstances giving rise to the ground in (i) or (ii) or paragraph 2. *Succinctly *is key here - long, convoluted narratives, appendices and other lengthy documentation/evidence are not appropriate or needed. Rather, we simply need to determine as a matter of first priority whether the matter raised is validly raised under 3.7, ie, whether it falls squarely in either (i) or (ii) or para 2. 2. A necessary and logical flow-on from #1 above, there is no clarity in the current 3.7 as to what type of documentation is required, what level of detail or documentation is required. A particularly litigious-minded WG member can treat this process as a sort of mini-litigation, with highly formal documentation. Another WG member may be far less formal in raising such a concern. Indeed, I am sure that we have had situations where 3.7 *could have been *invoked, and where informal discussions have occurred between a WG member and a WG Chair, but 3.7 was not mentioned. I was hopeful going into the IGO/INGO Curative Rights 3.7 (the first one, raised in December 2017) that the spirit and collegiality of the community would prevail and the proceeding could be conducted with a minimum of formality or litigation-style communication, but this assumption/hope was quickly dashed. I am not quick to suggest that we engage in more procedure or process drafting (ie, death by procedure) to anticipate in writing every possible situation, but I do think that some guidance here from the outset of a 3.7 (a sort of 'playbook', even if not expressly documented in the WG manual) would be helpful to set the expectations right from the outset. I personally do not believe that litigation-style correspondence or documentation leads to a multistakeholder consensus-based attitude or result. 3. Further to #2, some clarity as to whether the parties involved can/should be represented by legal counsel, and what to do when the 3.7 appellant asks for all communication to go through their counsel, is needed. 4. Our experience with 3.7 to date has demonstrated that the current first step, the discussion of circumstances with the WG Chair, is not fruitful. Further, there is no clear understanding here as to what to do when there is more than one WG Chair. If the WG Chairs have differing views, this suggests that the WG Chairs should confer between themselves to arrive at an agreed position prior to engaging with the s 3.7 appellant. 5. No real mention was made in the Curative Rights 3.7 of footnote 5, which requires that 'a formal appeal will require that a single member demonstrates a sufficient amount of support for initiating an appeal before the formal process outlined in Section 3.7 can be invoked'. Some further thought is needed as to what constitutes 'a sufficient amount of support', how is this impacted by a WG with low membership numbers, do we adopt the spirit here of consensus-building that this isn't so much a quantitative as a qualitative judgment call, etc. What to do if the WG member raising the appeal disagrees with the assessment that a 'sufficient amount of support' has not been demonstrated? 6. What role does the Council liaison play in the 3.7 process? Note the Liaison is not named anywhere in the body of 3.7, but our role description of liaisons does give certain responsibility in the event of disputes. The Liaison is explicitly mentioned in footnote 5 regarding the determination of whether 'a sufficient amount of support' exists. 7. What role does/can the Ombudsman or ICANN Complaints Officer play in the 3.7 process? 8. At what point, if any, should the GNSO raise the matter with ICANN Legal? What support, if any, can ICANN Legal provide to the WG Chairs and the GNSO Chair? 9. What is the next avenue of recourse if the discussion with the Chair of the GNSO does not resolve the matter such that the appealing WG member remains dissatisfied? (Further, why does that paragraph in 3.7 refer to the "Chair of the Chartering Organization", when presumably the only Chair of a CO that this document binds is the Chair of the GNSO?) 10. At what point should the matter be raised with Council? In my view, either the WG Chair/s or the liaison should notify Council as soon as possible following the initiation of a 3.7. This raises questions - does the initiation of a 3.7 get raised with the whole Council, and thus become public knowledge immediately, or should it be raised with Council leadership first, to provide a record but give a modicum of privacy in the hope of resolving the issue at the first step of dialogue with WG Chair? 11. What tools can we give WG Chairs to help them make difficult decisions like this? What to do if a WG Chair is unwilling to make a decision about a 3.7 complaint for fear of legal action or other reasons? If all 3.7s are ultimately given to the GNSO Chair because the WG Chairs simply find them too difficult to decide, does this suggest that WG Chairs are unable to perform their Chair duty, or does it suggest that we are lacking some support to WG Chairs to enable them to carry out their duty? These are my top burning concerns (which I have had running in a draft document for MONTHS now and have just added/tinkered as time went on. Mary, Susan, please add, chop, change as you see fit. Best wishes, Heather