[CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress

Mon Mar 9 03:58:28 UTC 2015

This discussion and the independent review panel discussions are useful but
I am concerned that there is a more fundamental issue. There needs to be a
full assessment of what can go to reconsideration, and what should go to an
independent review panel. If we are looking at issues of accountability in
the context of dispute resolution procedures, then we need to take a
systematic approach.

The 1st issue is the entry level for disputes. Are we trying to tweak the
existing systems, which have well-recognised deficiencies, or are we trying
to provide a better dispute resolution system? If this is the case, then we
need to think about criteria for entry into such a system, with structure
and procedure to enable the disputes to be handled with appropriate
standards of procedural fairness. There are issues for example with
reconsideration where as the ombudsman I have received complaints about a
conflict of interest between different committees of the board resulting in
a decision being heard by the board governance committee for reconsideration
decisions, where the complainant has said that the conflicts of interest are
fatal to a fair procedure. I immediately note that this is not the view of
at least some members of the board, but perception of bias is a critical
issue and designing a system, and should be avoided.

Similar issues arise with the IRP. There is discussion about how this
operates and members of the panel to be selected. There are mature
appointment systems with a number of organisations such as ICC and WIPO, and
rather than have panels selected by the community, again what some possible
connection causing a problem of perception of bias, it would be very easy to
tap into those resources to appoint experienced panellists.

Again, the entry level requirements for IRP need to be carefully considered
once the reconsideration process has been properly discussed. Are we talking
about a more wide-ranging process for deciding disputes? Or is this just the
narrow existing process, which we want to work better?

Just some discussion points.

Chris LaHatte

Ombudsman

From: accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Avri
Doria
Sent: Monday, March 09, 2015 4:18 PM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2
Review and Redress

Hi,

Does there need to be reconsideration based on a claim that staff action
contravenes  PDP developed policy?

Or was that contained in one of the included issues already?

avri

On 08-Mar-15 18:19, Robin Gross wrote:

Hello,

This email is to kick-off the discussion for the Reconsideration Sub-Group
of the CCWG Work Party 2 Review and Redress Mechanisms.

Volunteers so far: Robin Gross, Ed Morris, Chris LaHatte, David McAuley,
Carlos Gutierrez (please send a note to <alice.jansen at icann.org
<mailto:alice.jansen at icann.org> > to volunteer for this sub-group).

This WP2 sub-group should will look specifically at issues to be addressed
with respect to improving ICANN's accountability mechanisms involving a
reconsideration process of a board or management decision.

Specific Task:  To review the current rules under which reconsideration
occurs, and to propose appropriate changes to those rules to create adequate
accountability. 

Existing "Reconsideration Request" accountability mechanism:

See ICANN Bylaws Art. IV, Sec. 2) Board reconsideration of:

- One or more staff actions or inactions that contradict established ICANN
policy(ies); or

-  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

    - 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. 

-----------------------------------------------------------------------

Suggestions for Change/Enhancement ICANN's Reconsideration Processes:

1.     Mechanism for review of Board or management action in conflict with
ICANN Bylaws or Articles of Incorporation.

2.     Mechanism to require community (members, AC/SOs, etc.) to require
Board to act on, implement, amend, accelerate implementation of, a
previously approved ATRT recommendation.

3.     Change bylaws for Reconsideration Process: trigger when board acts
arbitrarily or capriciously; decisions subject to Independent Review.

4.     Reconsideration of staff action/inaction.

5.     Broadly expand grounds on which ICANN decisions and operations can be
challenged; lower threshold to succeed in a challenge.

6.  Reasonable time deadlines and other due process considerations.

What else?

------------------

Proposal to address implementation and operational issues including:

.      Standing

.      Standard of review

.      Composition

.      Selection

.      Decision-making

.      Accessibility

 *  Implementation

 *  Due process

Work Party 2 Reconsideration mailing list - wp2-reconsideration at icann.org
<mailto:wp2-reconsideration at icann.org>  - is now active.

Public archives may be found at:
http://mm.icann.org/pipermail/wp2-reconsideration/

May this sub-group please have a wiki page?  Thank you.

Please volunteer for this sub-group - especially if you have any experience
with ICANN's reconsideration process.

Thanks,

Robin

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