[CCWG-ACCT] Follow up from the last CCWG call

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Wed Apr 8 10:39:48 UTC 2015

Hello Robin,

>>  One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before.  There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request.  I'd be interested to hear what others think of this circular aspect of the RR process.

Note that the current reconsideration process has three broad categories of request:

a. one or more staff actions or inactions that contradict established ICANN policy(ies); or

b. one or more actions or inactions of the ICANN Board that have been taken or refused to be taken without consideration of material information, except where the party submitting the request could have submitted, but did not submit, the information for the Board's consideration at the time of action or refusal to act; or

c. one or more actions or inactions of the ICANN Board that are taken as a result of the Board's reliance on false or inaccurate material information

The majority of the re-consideration requests in the past couple of years have been in category (a) above.   It is rare that the request is able to argue a contradiction to policy - but the board in this case is a "second set of eyes".   In most cases the complainant wants the staff decision (usually an external panel) to be reconsidered on its merits - not whether it is consistent with an ICANN policy.    There is not currently a mechanism to allow a  second set of experts to review the original panel decision on its merits.   The cases where the complaint has been successful is where a process has not been followed correctly by a panel.

In the case of (b) - this does involve a Board decision - but rarely to complainants provide any new material information that relates to the decision.   If there is new material information - it does seem reasonable that the original set of eyes is able to see if that information would change their decision.

I have yet to see a case of (c) - where the complaint has been able to show that the information used by the Board was false.   

I do like your idea though of having another body (including potentially the ombudsman) to have an arms length review of the process.   Current ICANN uses its external counsel to give a review of the matter that is  independent of staff - but the external law firm is clearly acting on behalf of the organization rather than the complainant.   The external firm focusses on ensuring that the original panel followed all the rules in making its decision.

Bruce Tonkin

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