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

Tue Mar 10 18:35:29 UTC 2015

Dear All,

I agree with Chris that discussing this issues independently from each
other, and under the fixed present structure between Staff and Board is not
going to be either easy nor helpful.

The tacit assumption that the corporate structure is fixed and/or given,
not only limits the scope of its accountability exercise, but also the
transparency and the understating of its internal processes by external
actors.  As changes in the bylaws are being considered for the stewardship
transition, some structural bottlenecks could also be reviewed and reduced
and/or eliminated. A clearer corporate structure and the layered approach
Chris is suggesting (entry level, next higher level, etc. and
independence from whom (from Staff, from Board, All of ICANN) should be the
way to look for guarantees of stronger *internal* checks and balances. The
we can go to external ones.

Both ICANNs present corporate governance structure, as well as the present
implementation of its (MS) representation model, should be carefully
analysed at different levels or layers of responsibility and interests, as
a framework for analysing present and future reconsideration and redress
mechanisms.

Carlos Raúl Gutiérrez
ISOC Costa Rica Chapter
skype carlos.raulg
+506 8837 7176  (New  Phone number!!!!)
________
Apartado 1571-1000
COSTA RICA

2015-03-08 21:58 GMT-06:00 Chris LaHatte <chris.lahatte at icann.org>:

> 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> 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 –
> 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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>
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