[CCWG-ACCT] IRP must be binding

Malcolm Hutty malcolm at linx.net
Fri Jul 31 15:02:32 UTC 2015

Holly Gregory wrote:

> We do have one significant concern however and it relates to the
> following paragraph which was added in the very last draft: 
> _20 b. CCWG-Accountability confirms that the IRP Panel has the power to
> stay a Board decision or action. It further recommends that it also have
> the power to require ICANN to take a decision or action on an interim
> basis, until the Board has had a chance to consider and decide how to
> implement an IRP Panel decision._
> We strongly recommend this paragraph be deleted.  We believe that it is
> not only unenforceable but that it is inconsistent with California law
> and the fiduciary duties of directors (as indicated in prior memos). 

The intent of WP2 is that this recommendation be implemented with the
following language:
20.	The decisions of all three-member IRP Panels (unless appealed) shall
be final and binding to the extent permitted by law.

That language is contained in our proposed Draft Bylaws Text, that
accompanies the text on which you commented and which should be included
in the Final Report.

It is also consistent with the IRP's own assessment of its powers, as
stated in .africa, that it is binding abitration and not merely advisory
(paragraphs 98-115) - an assessment that ICANN argued against.

It is our view that this makes clear that we do not wish to invite the
Board to take a more expansive view of the scope of this exception than
they are required to do; instead, any refusual to follow an instruction
from the IRP to stay an action must be justified on the basis that to
follow it would be unlawful. That establishes a gravity and an
objectivity to the assessment of whether to follow the IRP ruling that
would otherwise be lacking.

I believe this Draft Bylaws language that we propose accomodates our
Counsel's advice fully.

I could accept further refinement of the language in the main report so
as to draw attention to this qualification, so long as we do so in a
manner that makes clear that it our intent is that the Board must give
the Panel's Decisions the greatest deference that they are permitted to
give it by law.

I cannot support removing this paragraph entirely and leaving it bare,
so that ICANN can again argue that the IRP is a purely advisory process.
That would compromise the entire proposal.

I hope I do not need remind you that there was overwhelming support for
a binding IRP from the first Public Comment.

I think I have explained our intent clearly enough: if Counsel have any
further objections in the light of this explanation, I would propose
that they be asked to draft language themselves that gives effect to out
intent in a lawful manner.

As I have said before, if the IRP cannot within the laws of California
be made an effective means of ensuring the accountability of ICANN
according to its own corporate documents, then ICANN cannot be allowed
to transition from US federal while remaining in California. The Sole
Member was offered *by the same Counsel* as a solution to this quandary;
if it is not then our entire proposal is fundamentally flawed.


Malcolm Hutty.
            Malcolm Hutty | tel: +44 20 7645 3523
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