[CCWG-ACCT] IRP text following call with Malcolm

[Malcolm Hutty]

On 31/07/2015 05:30, Greg Shatan wrote:
> A consolidated draft with changes from Becky, Malcolm and myself is
> attached.  Given where we are in the process, I have included marginal
> comments explaining any change I made that was more than punctuation or
> a typo.  I don't think any of the changes represent "new ideas" but
> there are a couple of places where the original idea was rather obscure
> so I attempted to clarify it.

Thank you for your explanations Greg.

Mostly I accept them, but I do have two where I disagree with making the
changes for which you ask.


1. You added "*specify the provisions violated in the relevant documents*"
in the following passage (under "Decision Making") that sets out duties
for the IRP panel:

"All decisions will be documented and made public and will reflect a
well-reasoned application of the standard to be applied *and will
specify the provisions violated in the relevant documents*  (i.e.,
Bylaws, the Statement of Mission, Commitments, and Core Values, and
ICANN policies)."

I disagree with your explanation that without this wording the existing
language makes no sense: it may not be perfect legalese, but the
parenthetical clear elaborates on the preceeding "the standard to be
applied")

Instead of merely clarifying, your additional language adds a new duty:
not one I particularly object to, but it is new: that the panel's
decisions must not only be real reasoned but must also explicitly
identify the provisions ICANN has violated. Your wording here however
doesn't quite work: it assumes that the IRP will be finding against
ICANN. The IRP will not be able to comply with your requirement when
finding in ICANN's favour.

Accordingly, this addition can't be accepted.



2. You made a separate paragraph of the following:
"The panel may not direct the Board or ICANN on how to amend specific
decisions, it shall only be able to make decisions that confirm a
decision by ICANN, or cancel a decision, totally or in parts"
separating it from the section on appeals.

That language, which was original and unchanged by our final draft,
seems to have slipped through. You're correct to point out that it
doesn't seem to relate to appeals, but I would also point out that it is
inconsistent with one of our other recommendations:

"The CCWG-Accountability further recommends that ithe decisional Panel
also have the power to require ICANN to take a decision or action
consistent with the Panel’s decision on an interim basis, until the
Board has had a chance to consider and decide how to implement an IRP
Panel decision" (from the section on Decision)

I therefore think the proper correction to this sentence is to delete
it, rather than "promote it" to become a paragraph of its own.


For convenience, attached is Greg's paper minus those two proposed
additions.


-- 
            Malcolm Hutty | tel: +44 20 7645 3523
   Head of Public Affairs | Read the LINX Public Affairs blog
 London Internet Exchange | http://publicaffairs.linx.net/

                 London Internet Exchange Ltd
           21-27 St Thomas Street, London SE1 9RY

         Company Registered in England No. 3137929
       Trinity Court, Trinity Street, Peterborough PE1 1DA


-------------- next part --------------
A non-text attachment was scrubbed...
Name: 30 July revisions to IRP 4 May IDR GS revisions corrected.docx
Type: application/vnd.openxmlformats-officedocument.wordprocessingml.document
Size: 40691 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150731/d5cd0714/30JulyrevisionstoIRP4MayIDRGSrevisionscorrected.docx>