Dear IFR2 team, for the sole purpose of documentation here is the the initial problem statement for Rick and Jonathan who had volunteered to research the origins of the special role of the (then) Ombudsman in the IANA Functions Contract as developed during the IANA Stewardship Transition. Meanwhile we have discussed the in depth results as reflected in the Draft Report. It just occured that this piece had not been shared with the whole team. Best regards Peter ----- Forwarded message from Peter Koch <pk@denic.de> ----- From: Peter Koch To: Ashley Heineman, Rick Wilhelm, Jonathan Robinson Cc: Brenda Brewer, Reda Josifi, Elizabeth Garber Subject: IFR2/CSC research on Naming Function Contract Article VIII Date: Thu, 2 Jan 2025 11:22:33 +0100 Dear all, this is my attempt to a summary for the 'research' on the role of the Ombudsman in the Naming Functions Contract. During the review of the IANA Naming Functions Contract as well as in communication with the Customer Standing Committee (CSC), there were questions raised about section VIII (escalation mechanisms) of the contract, in particular: ARTICLE VIII: ESCALATION MECHANISMS Section 8.1 Complaint Resolution Process. (a) If Contractor receives a customer service complaint from a customer (a "Complaint"), Contractor will review the Complaint and attempt to resolve it to the reasonable satisfaction of the person or entity who brought the Complaint (the "Complainant") as soon as reasonably practicable. If the Complaint is not so resolved, the Complainant may escalate the matter in writing to Contractor's management team, in which case Contractor shall notify the CSC. If the Complaint is still not resolved, the Complainant or the President of Contractor may escalate the matter in writing to ICANN's Ombudsman. (b) If (i) a Complainant is a customer and (ii) after completing the escalation process provided for in Section 8.1(a), the Complaint is still not resolved, then (A) the CSC may conduct a review to determine whether the Complaint is subject of a persistent performance issue of Contractor or an indication of a systemic problem with Contractor's performance of the IANA Naming Function pursuant to the terms of this Contract (a "Performance Issue") and (B) the Complainant may (x) request mediation, which shall be conducted in a manner consistent with the terms and process set forth below in Section 8.1(c) and (y) if the issue is not resolved following such mediation and the Complaint meets the requirements of the Independent Review Process, initiate an Independent Review Process (as defined in the ICANN's Bylaws). If the CSC determines that a Performance Issue exists, the CSC may seek remediation of the Performance Issue through the IANA Problem Resolution Process described in Section 8.2. (c) Customer Mediation Process. (i) If a Complainant is a customer of Contractor, after completing the escalation process provided for in Section 8.1(a), the customer may initiate mediation by delivering a written notice to the President of Contractor and the Secretary of ICANN. (ii) There shall be a single mediator who shall be selected by the agreement of the customer and ICANN. ICANN shall propose a slate of at least five potential mediators, and the customer shall select a mediator from the slate or request a new slate until a mutually agreed mediator is selected. The customer may recommend potential mediators for inclusion on the slates selected by ICANN. ICANN shall not unreasonably decline to include mediators recommended by the customer on proposed slates and the customer shall not unreasonably withhold consent to the selection of a mediator on slates proposed by ICANN. (iii) The mediator shall be a licensed attorney with general knowledge of contract law and general knowledge of the DNS and ICANN. The mediator may not have any ongoing business relationship with ICANN, Contractor or the customer. The mediator must confirm in writing that he or she is not, directly or indirectly, and will not become during the term of the mediation, an employee, partner, executive officer, director, consultant or advisor of ICANN, Contractor or the customer. (iv) The mediator shall conduct the mediation in accordance with this Section 8.1(c), the laws of California and the rules and procedures of a well-respected international dispute resolution provider. (v) The mediation will be conducted in the English language and will occur in Los Angeles County, California, unless another location is mutually agreed between ICANN, Contractor and the customer. (vi) ICANN, Contractor and the customer shall discuss the dispute in good faith and attempt, with the mediator's assistance, to reach an amicable resolution of the dispute. (vii) ICANN shall bear all costs of the mediator. (viii) If ICANN, Contractor and the customer have engaged in good faith participation in the mediation but have not resolved the dispute for any reason, ICANN, Contractor and the customer may terminate the mediation at any time by declaring an impasse. 13 (ix) If a resolution to the dispute is reached by ICANN, Contractor and the customer, ICANN, Contractor and the customer shall document such resolution. Section 8.2 IANA Problem Resolution Process. Following the Effective Date, Contractor shall work cooperatively with the CSC to develop "Remedial Action Procedures" for the purpose of addressing Performance Issues. If the CSC determines that a Performance Issue exists, the CSC may seek resolution of the Performance Issue with Contractor, in which case Contractor shall comply with such Remedial Action Procedures if and to the extent the CSC also complies with such procedures. Section 8.3 Notice and Mitigation Plan. (a) Contractor shall promptly inform ICANN of any issue or dispute arising from its performance of the requirements and services contemplated by this Contract prior to the Complaint being escalated pursuant to Section 8.1(a), and shall agree with ICANN on a plan to resolve the Complaint. (b) If, for any reason, Contractor fails to meet any of the requirements of this Contract, Contractor shall (i) conduct an analysis of its operations to determine the root cause of such failure, (ii) develop a mitigation plan to avoid the root cause of such failure from occurring in the future, and (iii) deliver the report to ICANN upon its completion. Contractor shall modify and update any mitigation plan as directed by ICANN. The questions discussed with the CSC: 1) Is the process described in 8.1(a) optional? While we discussed the semantics of the 'may' in 8.1(a), it occurs to me that the steps are of course optional (as in: no obligation to esacalate), but going through it is a precondition for the next steps described in 8.1(b). 2) The role of the Ombudsman We observed that the role of the Ombudsman beyond Section 4.2 and Article 5 had never occured (at least had not occured with particular reference to section 8.1(a)). We also observed that an escalation to the Ombudsman could be started by both the Complainant and the Contractor. We understood that this was a result of the Stewardship Transition discussion but we have been unable to research the exact details of that reasoning. This is what should be found out by the volunteer small team. The reason for addressing this within the IFR is that this is the only way (for the CSC, and maybe others) to initiate a change, if so desired. Best regards Peter ----- End forwarded message ----- -- DENIC eG, Theodor-Stern-Kai 1, 60596 Frankfurt am Main, GERMANY E-Mail: pk@denic.de, Fon: +49 69 27235-165, https://www.denic.de Angaben nach § 25a Absatz 1 GenG: DENIC eG (Sitz: Frankfurt am Main) Vorstand: Thomas Keller, Martin Küchenthal, Andreas Musielak, Sebastian Röthler Vorsitzender des Aufsichtsrats: Daniel Rink Eingetragen unter Nr. 770 im Genossenschaftsregister, Amtsgericht Frankfurt am Main Allgemeiner Hinweis zur Erfüllung unserer Informationspflichten gemäß Art. 13, Art. 14 DS-GVO: Informationen zur Verarbeitung personenbezogener Daten durch DENIC finden Sie unter https://www.denic.de/datenverarbeitung-allgemein/