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

Tue Mar 17 23:04:53 UTC 2015

I think the point is that there is so much at stake in these applications that their legal teams would use any available mechanism to have adverse decisions examined. Bruce will be able to confirm this, but it is my understanding that it was anticipated that this would happen, although of course no one was really able to say what form they would use to appeal adverse decisions. My review of the reconsideration decisions, and of the IRP decisions to date, is that ICANN has been faced with some very creative legal submissions, but which are really based on economic considerations of seeking to obtain financial advantage with the new strings. To put this in context, this is one specific project which has stretched the accountability functions in a way not previously used. But I wonder whether this particular use of the functions is in reality abnormal and that looking forward, to what extent do we need to anticipate similar creative approaches to use of the accountability functions.

Chris LaHatte

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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Jacob Malthouse
Sent: Wednesday, March 18, 2015 11:55 AM
To: bruce.tonkin at melbourneit.com.au
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"

Hi Bruce, wouldn't someone just go all the way to IRP anyway even if there was a new gTLD appeal? No one's going to voluntarily stop at appeal #1 if appeal #2 is still on the table. Best, J. 

Jacob Malthouse

Co-founder & Director, Big Room Inc. 

778-960-6527

http://www.bigroom.ca/

On 17 March 2015 at 15:26, Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au <mailto:Bruce.Tonkin at melbourneit.com.au> > wrote:

Hello Greg,

>>  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.

Yes the lack of an appeal process within the new gTLD program has basically shifted the focus to the Board.   I.e. parties unhappy with an independent panel decision have escalated it to a Board panel (reconsideration process).   The reconsideration process did not include reviewing an independent panel decision on its merits (the Board doesn't actually have the subject matter expertise to review most panel decisions on their merits)  – but instead involves reviewing  that the panel followed the dispute process properly.   Then IRP is then used to appeal the Board reconsideration decision.   The root cause in these cases is the lack of an ability to appeal an independent panel decision within the new gTLD program on its merits.

Regards,
Bruce Tonkin

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