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

Tue Mar 17 16:58:08 UTC 2015

Below are a few further elaborations on the Reconsideration Request reforms that are needed.  Please provide additional feedback and suggestions on how to reform this process.

Thanks,
Robin

ICANN Bylaws, Art IV, Section 2 is on the Reconsideration Review Process  https://www.icann.org/resources/pages/governance/bylaws-en

Reconsideration Request reforms to address implementation and operational issues including:

1.  Standing

Amend "who" has proper standing to file a Reconsideration Request to widen its scope to include any party impacted by the ICANN decision / inaction.  The current two step test of demonstrating both i) material harm, and ii) adversely impact is too burdensome and restrictive.

Current rule: "Every requestor must be able to demonstrate that it has been materially harmed and adversely impacted by the action or inaction giving rise to the request."  - Bylaws IV Section 2, Para 8

2.  Standard of Review

Amend the standard of reviewing a Reconsideration Request to include a re-examination of the underlying merits of arguments and decisions.  

Also broaden the types of decisions which can re-examined. 

Also, amend when BGC may "summarily" dismiss a request based on Requester not participating in a public comment period on the issue. (Para 9)

3.   Composition

Currently, the Board Governance Committee works with the legal dept to formulate an initial recommendation* to the full board.  While I understand the need for some legal advice to the BGC, it may be the case that less reliance on the legal dept to guide the BGC on its recommendation would be more fruitful and encourage the board members themselves to engage deeper in the process, obtain a greater understanding of the underlying issue, and take more responsibility for making these decisions. (*Except: Issues regarding staff action/inactions and 3rd party panels in new gtld program, in which the BGC has option of making final decision itself, rather than full board.  This should be amended so entire board learns what staff is up to, not just BGC).

4.   Selection

N/A

5.  Decision-making

Transparency improvements are needed regarding the information that make up the decision-making process.

Reconsideration Request decisions currently have "precedential value" - so a party affected by a previous decision should be able to challenge the previous decision to which his case is bound under precedent.

6.  Accessibility

Extend the time deadline for filing a Reconsideration Request to 30 days.  Currently, the deadline for filing is (generally) 15 days from when decision/action is taken and posted or when one can reasonably conclude action/decision will not happen.

7.  Implementation

Requestors may need a follow-up process regarding implementation of decision reconsidered

 8.  Due process

Provide opportunity for oral argument with rebuttal opportunity.  Currently it is at the Board's option if it wishes to permit an oral discussion.

Provide all briefing materials supplied to board to Requester so that they may know the arguments against them and have an opportunity to respond.

Final decisions should be issued sooner.

Requests for "urgent" reconsideration should be broadened and less subjective in criteria for acceptance of "urgency".

What else????

On Mar 8, 2015, at 3:19 PM, 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
> 
> 
> 
> 
> 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150317/c73c4434/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: signature.asc
Type: application/pgp-signature
Size: 496 bytes
Desc: Message signed with OpenPGP using GPGMail
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150317/c73c4434/signature.asc>