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

Tue Mar 17 18:25:27 UTC 2015

The idea that gTLD panel decisions should be unappealable might have seemed
reasonable in the abstract.  In practice, it has turned out to enshrine and
insulate inconsistent and poorly reasoned decisions.  This may not be the
right forum for revisiting that decision, as opposed to New gTLD Program
review processes.  Furthermore, this may not be an issue that involves
reviewing Board decisions, so again, this may not be the right place (or at
least, the right email thread) to bring this up.

However, there's still a legitimate issue raised by the "unappealability"
of certain decisions, which does need to be revisited in whatever the right
place and time is.

Greg Shatan

On Tue, Mar 17, 2015 at 1:17 PM, Jacob Malthouse <jacob at bigroom.ca> wrote:

> The IRP was never intended to be a mechanism to challenge the merits of
> new gTLD panel decisions.
>
> Indeed, appeals mechanisms for new gTLD panel decisions were discussed by
> the community as early as v1 of the draft AGB in 2009. At the time, many
> comments from the comment focused on a concern that an appeals process
> would cause undue delay to the program as a whole.
>
> See:
> https://archive.icann.org/en/topics/new-gtlds/agv1-analysis-public-comments-18feb09-en.pdf
>
> p87: *"It does not seem that the absence of an appeals process within the
> process conflicts with ICANN’s role in serving the public interest. There
> are various countervailing factors to consider in formulating the dispute
> resolution procedure. Adding a procedure for appeal would increase the cost
> and extend the duration of many – if not most – proceedings, thereby
> delaying the introduction of many new gTLDs. If on appeal, the
> determination is “reversed,” there would be an argument for extending the
> process even further, resulting in great uncertainty in the process."*
>
> and
>
> *"At this juncture, ICANN does not plan to introduce an appeals mechanism
> into the dispute resolution process that has been developed. ICANN has
> heard many comments about making sure the new gTLD program progresses as
> swiftly and efficiently as possible. A dispute process that does not
> include a separate appeals mechanism is intended to help minimize the delay
> of introduction of new gTLDs into the root zone."*
>
> It is unfortunate that the neither ICANN nor the community foresaw that
> attempts would be made to use the IRP as an appeals process despite it
> clearly not being one, and despite the community guidance being that there
> should not be one.
>
> Best, Jacob.
>
>
> Jacob Malthouse
> Co-founder & Director, Big Room Inc.
> 778-960-6527
> http://www.bigroom.ca/
>
> On 17 March 2015 at 06:32, Paul Rosenzweig <
> paul.rosenzweig at redbranchconsulting.com> wrote:
>
>> This is exactly right.  Since international law is, in the main as Dr.
>> Lisse has said, an agreement between nation states and since, as well,
>> there is almost no consensus on what the substantive content of
>> international law is (beyond the very limited area of IHL) the idea of
>> making ICANN subject to some amorphous idea of an international law is I
>> think unworkable.    ICANN is a limited purpose entity.  It should be
>> subject to the commercial  agreements it makes (with contracted parties,
>> mostly) and to the commitments it makes and/or are adopted by its
>> “member/stakeholders” – that is, us.  It cannot and should not be a vehicle
>> for us pouring into it our dreams and hopes about human rights or some
>> undefined public good.
>>
>>
>>
>> Paul Rosenzweig
>>
>> paul.rosenzweig at redbranchconsulting.com
>> <paul.rosenzweigesq at redbranchconsulting.com>
>>
>> O: +1 (202) 547-0660
>>
>> M: +1 (202) 329-9650
>>
>> VOIP: +1 (202) 738-1739
>>
>> Skype: paul.rosenzweig1066
>>
>> Link to my PGP Key
>> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>>
>>
>> <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_medium=email&utm_campaign=signature-us2015>
>>
>>
>>
>> *From:* David Post [mailto:david.g.post at gmail.com]
>> *Sent:* Monday, March 16, 2015 5:49 PM
>> *To:* Rahul Sharma
>> *Cc:* Accountability Cross Community
>>
>> *Subject:* Re: [CCWG-ACCT] Regarding ICANN's adherence to "international
>> law"
>>
>>
>>
>> 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 <psc at vlaw-dc.com> wrote:
>>
>> Thatâ€™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
>>
>> 202-255-6172/cell
>>
>> 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 Ã¢€œfor 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.Ã¢€Â 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.Â  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
>>
>> book (Jefferson's Moose)Â  http://tinyurl.com/c327w2nÂ Â Â Â Â
>> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>
>>
>> music http://tinyurl.com/davidpostmusic publications etc.Â  http://www.davidpost.comÂ
>> Â Â Â Â Â Â  <http://??>
>>
>> *******************************
>>
>>
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>>
>> *******************************
>> David G Post - Senior Fellow, Open Technology Institute/New America
>> Foundation
>> blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
>> book (Jefferson's Moose)  http://tinyurl.com/c327w2n
>> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>
>> music http://tinyurl.com/davidpostmusic
>> <http://tinyurl.com/davidpostmusic%A0>publications etc.  http://www.davidpost.com
>>
>> *******************************
>>
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