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

[Kavouss Arasteh]

Dear All,
Many  , if not all of comments made are relevant  .
We need to look the mandate and scope of work opf the IRP .Perhaps it
should have some basic /general part and for each and evry case some
particular part dealing with that specific issue.
There are currently deficiencies in that process and Booking.com is a clear
example of that deficiency
Kavouss

2015-03-16 22:49 GMT+01:00 David Post <david.g.post at gmail.com>:

>  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  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 <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
>
> 202-559-8750/Fax
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>
> Â
>
> Twitter: @VlawDC
>
> Â
>
> "Luck is the residue of design" -- Branch Rickey
>
> Â
>
> From: accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <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    See:
> https://www.icann.org/en/about/governance/articles
> <https://wwww.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
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