[CCWG-ACCT] Regarding ICANN's adherence to "international law"

[Rahul Sharma]

+1  David and Phil



Since IRP is only meant to review if Board decisions are in line and
consistent with procedures and principles established, and as such cannot
challenge any Board decision, a Body that ensures that ICANN adheres to
international laws, and if its decisions are legitimate or not  and should
be challenged should be (1) an independent body, constituted by a process
independent from ICANN and (2) and have expertise in international law, and
not just commercial arbitration



ICANN shouldn't be involved, or shouldn't have any influence in IRP
constitution or its working. We should have something like the
International Court of Justice or International Law Commission or something
that provides a bench which should be the appeals mechanism. There could
often be other issues involved about possible non adherence to
international laws, other than matters of trade and commerce.



Regards,

Rahul Sharma

On 16 March 2015 at 05:10, Phil Corwin <psc at vlaw-dc.com> wrote:

>  That’s exactly right, David, and what we just saw in the IRP brought by
> Booking.com over the finding that .Hotels and .Hoteis were in the same new
> gTLD contention set
>
>
>
> The available accountability mechanisms were restricted to reviewing
> whether proper procedure had been observed, but could not reach the
> admittedly questionable merits of the original decision that found them
> confusingly similar at the gTLD level.
>
>
>
> So when should the merits of a Board decision be susceptible to
> modification or reversal, who has standing to bring such a challenge, and
> what should be the standard of review? Important questions, and not easy to
> answer.
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597/Direct*
>
> *202-559-8750/Fax*
>
> *202-255-6172/cell*
>
>
>
> *Twitter: @VlawDC*
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *David
> Post
> *Sent:* Sunday, March 15, 2015 9:26 AM
> *To:* Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] Regarding ICANN's adherence to "international
> law"
>
>
>
> At 08:16 PM 3/14/2015, Bruce Tonkin wrote:
>
>  Under its Articles of Incorporation ICANN already operates “for the
> benefit of the Internet community as a whole, carrying out its activities
> in conformity with relevant principles of international law and applicable
> international conventions and local law.”   See:
> https://www.icann.org/en/about/governance/articles
>
> The Independent Review Process allows parties to challenge Board decisions
> that are inconsistent with the Articles of Incorporation or Bylaws.
>
> [SNIP]
>
>
> Just by way of clarification, while it's true that the IRP allows parties
> "to challenge Board decisions that are inconsistent with the Articles of
> Incorporation or Bylaws," the IRP panel does not have the power to actually
> decide the question of whether or not a Board decision WAS inconsistent
> with the Articles or Bylaws.  See Bylaws, Art IV sec 3(4):
>
> "The IRP Panel must apply a defined standard of review to the IRP request,
> focusing on:
>
>     1. did the Board act without conflict of interest in taking its
>       decision?;
>       2. did the Board exercise due diligence and care in having a
>       reasonable amount of facts in front of them?; and
>       3. did the Board members exercise independent judgment in taking
>       the decision, believed to be in the best interests of the company?"
>
> That's a much narrower scope of inquiry than whether the Board acted
> outside the ByLaws, for example.
>
> David
>
> *******************************
> David G Post - Senior Fellow, Open Technology Institute/New America
> Foundation
> blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
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>
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