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

[David Post]

At 10:41 PM 3/15/2015, Rahul Sharma wrote:

>+1Â  David and Phil
>
>Â
>
>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 
>Â 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

Rahul:  Just to be clear:  it wasn't my 
understanding that there would be a body the 
"ensures that ICANN adheres to international 
laws."  In my opinion (which may or may not be 
shared by others), an Independent Review Panel, 
which ensures that ICANN adheres to (a) its 
commitment to consensus decision-making (b) 
within the stated mission (i.e., only makes 
policies reasonably necessary for security and 
stability of the DNS), that will go a long way to 
keeping the Board within proper limits.  I'm not 
convinced that a second body charged with 
enforcing international law would be helpful or 
necessary, and might just over-complicate the process.
David


>On 16 March 2015 at 05:10, Phil Corwin 
><<mailto:psc at vlaw-dc.com>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
>
>Â
>
>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.
>
>Â
>
>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.
>
>Â
>
>Philip S. Corwin, Founding Principal
>
>Virtualaw LLC
>
>1155 F Street, NW
>
>Suite 1050
>
>Washington, DC 20004
>
>202-559-8597/Direct
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>202-559-8750/Fax
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>Â
>
>Twitter: @VlawDC
>
>Â
>
>"Luck is the residue of design" -- Branch Rickey
>
>Â
>
>From: 
><mailto:accountability-cross-community-bounces at icann.org>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"
>
>Â
>
>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 a whole, carrying out 
>its activities in conformity with relevant 
>principles of international law and applicable 
>international conventions and local law.â€ÂÂ 
>Â  See: 
><https://wwww.icann.org/en/about/governance/articles>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:
>    * did the Board act without conflict of interest in taking its decision?;
>    * did the Board exercise due diligence and 
> care in having a reasonable amount of facts in front of them?; and
>    * 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
>
>*******************************
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book (Jefferson's Moose)  http://tinyurl.com/c327w2n
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