[CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP

Wed Mar 4 06:07:58 UTC 2015

Greg,

I think both you and Philip raise interesting points. A useful exercise for the CCWG may be to examine the booking.com -v- ICANN IPR and consider what recourse mechanisms the CCWG believes should have been available to any of the relevant parties and at what times during the process. This may help clarify the difference between (and community desire for) recourse mechanisms that test policy decisions, decisions of independent panels, decisions of the Board and so on.

And, as a separate question, in respect to your comments below about mechanisms that go directly to the merits of a decision, what decision would that apply to in this case? 

Cheers,

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On 4 Mar 2015, at 16:52 , Greg Shatan <gregshatanipc at gmail.com> wrote:

> An appeal or review process that is limited to challenging procedural and process errors, and that leaves no recourse to challenge the merits of a decision, or the merits of the policies and procedures used to arrive at that decision, is so narrowly cast as to be worthless in the vast majority of cases.  The fact that it is used as often as it is speaks much more to the importance of the decisions and to the desperate desire of the community for recourse than it does to the value of the review mechanism itself.  It's like drinking from a muddy, stream when you're thirsty -- you drink in hope of satisfaction but end up no better than when you started (or worse, if you count the time, money and resources expended (or the e. coli in the stream).
> 
> I wouldn't go so far as to say it was "designed to support whatever decision is made by the staff and Board, irrespective of whether that is a good decision or not,"  That's a phrasing that seems to ascribe ill intent, which i think is an exercise too often engaged in within this community and less often correct than those that indulge in it think.  I think it is enough to say that it was not intended to allow any challenge to a decision on the merits, so whether a decision is good or bad is irrelevant to this mechanism. 
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> If the community wants a mechanism that goes directly to the merits of a decision (as opposed to "back door" challenges to procedure), this ain't it.  
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> If the community wants a mechanism that goes directly to the merits of a decision, then it's up to this group at this time to push forward toward that goal.
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> Greg
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> On Tue, Mar 3, 2015 at 11:35 PM, Kieren McCarthy <kierenmccarthy at gmail.com> wrote:
> So I've just read it all.
> 
> My take away is what I believe many of us are already aware of: that the current accountability systems are designed to support whatever decision is made by the staff and Board, irrespective of whether that is a good decision or not.
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> In other words, the accountability mechanisms provide no way to force a reversal of a decision even when Board members and the review panel itself think the wrong conclusion had been reached.
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> For real accountability - rather than long expensive and largely pointless processes - there need to be mechanisms in which the decision itself can be questioned, in which staff can be found to have withheld useful information and held to account for that, in which ICANN corporate is not pitched against an applicant, and in which the people carrying out the review don't have to say "it sucks but there's nothing we can do about it".
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> Kieren
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> -
> [sent through phone]
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> On Tue, Mar 3, 2015 at 7:38 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
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> I have not had a chance to review the entire 50-page document, but the heart of the decision is at the Conclusion, Sections 141-147 on pp.42-43. (decision attached)
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> The panel states that the limited nature of the current IRP means that any complainant faces an “uphill battle” and “significant obstavles.> That is especially true where, as here, the adopted policies and procedures are followed, with no available recourse to contesting the soundness of those policies and procedures.
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> The decision is a good example of the bounds of the current system. The question is to what extent new accountability measures should make challenges to Board actions less of an uphill battle, or provide a basis for challenging the underlying policies and procedures.
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> Philip S. Corwin, Founding Principal
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> "Luck is the residue of design" -- Branch Rickey
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> From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Samantha Eisner
> Sent: Tuesday, March 03, 2015 10:06 PM
> To: accountability-cross-community at icann.org
> Subject: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP
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> ICANN received today the final declaration in the independent review proceeding filed by Booking.com. The declaration can be found at https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf. 
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> Best,
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> Samantha 
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> <ICANN-ACCT-Bookingdotcom_IRP-final-declaration-03mar15-en.pdf>
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> -- 
> Gregory S. Shatan ï Abelman Frayne & Schwab
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