[CCWG-ACCT] Notes-Recordings-Transcript links for WP2 Meeting | 5 October

Mon Oct 5 21:53:05 UTC 2015

Hello all,

The notes, recordings and transcripts for the WP-2 meeting on 5 October will be available here:
https://community.icann.org/x/555YAw

A copy of the notes may be found below.

Thank you.

Kind regards,

Brenda

Notes

--These high-level notes are designed to help you navigate through content of the call and do not
substitute in any way the transcript.

BBurr - Going over agenda slide. Funding costs, accessibility and independence and interlinked at
some level.

Need to be certain that the dependence issue is on solid ground.

Is costing sustainable?

Is IRP really accessible.

The Board comment  (MEM and IRP are essentially  the same for us) ICANN bare the cost the community
requests and that traditional request from the commercial sector continued to be carried by both
parties with the panel having discretion to allocate costs based on the merits of the case.

These issues should be summarized in a document for Dublin.

Re: Reconciling conflicting decisions of expert panels - ICANN suggesting that the policies should
address this instead of IRP. This is good but should the IRP be the backstop in case some issues are
not covered in the policy? 

IRP could also covered fundamentally irrational decisions as per one commenter - this is a
substantive comment which should be considered.

Other comments included IRP being applicable to the SMM for community accountability.

Some suggesting an abuse of discretions standard vs de novo which was supported by the ICANN Board.

A number of comments on Standing including a number of govts.

A few comments from IPC were interesting.

Also permissive filing vs abuse of the process.

Issues around preventing abuse.

Board suggesting rolling back to 2013 needs to be properly understood in our context.

This completes the overview of the big issues unless there are other issues?

SDB - RE C. Disspain requirement of restricting IRP - our text does not seem to address this? BB -
was this about the global public interest? SDB CD believes it should only apply to the 5 powers.

BB - Global public interest as defined for ICANN.

DM - para 268.7 re community IRP has no limitations. CD may of been thinking of MEM which is limited
to fundamental Bylaws 

AG - SDB did CD think it was restricted? SDB yes 

BB - there was no intent that the CCWG would have such limitations. We should ask Chris to detail
his concern so WP2 can consider it.

KA - ICANN refers to MEM panel to review issues brought up by MEM group - this does not seem to be
the same as IRP.

BB - correct - if we assume the MEM panel used the bylaws as a standard for review what would be the
need for the IRP panel using the same standard? The response was that it may not be necessary. The
group should discuss and make a decision. There seemed to be flexibility in the Board position on
this point.

AG - Reconciliation issue was made by ALAC   - if we leave this in we need to have appropriate
output for doing this.

BB - ALAC points out a gap in IRP. Do we think there is a purpose to be served by having a court of
last resort if the policy is deficient. 

DM -  re divergent policy decisions should be handled in in the new gTLD policy directly.

AG - support DM but this time the Board said there was no provision for comparing decisions - in a
future round it may be useful to have sanity checks but this is problematic vs TLDs already being
delegated. Ultimately for panels - what is the resort for someone identifying an issue - this would
mean it would be good to have a last resort.

BB - Chris D has joined us. SDB explains the issue.

CD - Had understood that the community IRP was limited to a finding that the bylaws had not been
followed - no finding of fact but rather be about process. 

BB - Was more about the Board respecting the use of the community's powers vs ICANN not having
respected its bylaws. 

CD - understand - imagine there are 2 processes IRP and MEM. MEM was for the community IRP and
therefore no need for a community IRP and the associated threshold - would the results be different
in the areas of dispute discussed 

BB - Yes there would be a difference in that ICANN would pay for it. Some in the community thought
that the Trademark +50 violated the Bylaws but that IRP was too expensive to undertake. However
there are strongly held feelings in the community that they could gather support for a community
based IRP without having to find funding.

CD - talking about 3 different things which is ok in principle -  but the question is what is the
practical threshold and across SOACs may be overly hard to achieve.

AG - Other example - go back to ICANN CERT, first big CCWG and supported by many members - could be
against ICANN Bylaws but there can be no aggrieved parties therefore only the community could bring
such and IRP.

KA - this is overly specific.

BB - we have reached the end of this subject having reached understanding. But appreciate it is
difficult.

BB- Funding, costs, accessibility and independence issue re: comments. Some commercial interests
thought it was important to give the panel the right to shift costs depending on the merits of the
case. ICANN felt that its obligation to fund should be limited to community IRPs or MEMS. dOES
ANYONE HAVE A VIEW ON THIS.

DM - Our proposal was reasonable where ICANN pays for the panel with some cost shifting. Re
independence agree with BB's earlier comment that govts pay for courts. Accessibility - do not know
what the solution would be.

BB - We seem to be converging and this should be included in the analysis,

BB - other topic = Participation in a PDP required before bringing and IRP? These were heard in the
first round of comments and the group felt that this standard would be difficult to apply - people
affected by ICANN policies may not know they will be affected - and settled on the current text in
the second proposal. There were several comments that were concerned about this.

DM - Good summary. Make this an equitable defense? A subgroup could help create a valid solution.

BB - echoes a way forward for BB - May be useful to think of this in the context of abuse which
could cover WAITING IN THE WEEDS.

BB - re the 2013 standard - the group really needs to explore what this implies.

AG- is it simply undoing the Bylaws that caused the change in 2013?

BB - There was a gap in understanding at the time....many detailed issues.

AG - re what is being proposed is simply to undo the Bylaw change regardless of anything else.

BB - possibly but there may be a possibility to close some gaps.

GS - On roll back to 2013 - we need to explain it to participants so everyone understands the
details to establish a common baseline.

BB - Prompt action to establish WS2 group for details. We will need an assignment on this issue.

BB - will send out a call for volunteers to address issues on the Major issues list. There is one
additional issue which is a holdover from the discussion on AOC.

AG - can we get this done in time 

DM - doubtful

BB - (Page 80 of proposal re AOC) concerning malicious issues etc. As part of the work in preparing
the second report decided this was better suited to the reviews section. An issue that has surfaced
with strong feelings is the no new gTLDs until....this is a new provision which is not in the AOC.

SDB - WP! while working on AOC as per comments on the first proposal. Only the Board disagreed
stating it could be a barrier to entry. WP1 is considering keeping this. But this makes this cross
over into this group 

BB - Other comments on this.

AG - What if ICANN goes ahead with a new round of gTLDs knowing there are recommendations that have
been made without including them?

BB- current status on new gTLD review - SDB just beginning,

BB - Would a new PDP on this be held until the review is completed.

SDB - there are possibilities of a conflict. But we would expect that ICANN would wait for
recommendations.

AG - remedial actions may take a long time - and we should not be bound on waiting for this. the
last clause is too wide, recommendations for new rounds should only be applicable to new rounds.

BB - propose to expand the major issues list and make a call for volunteers to address these. On our
next call we should discuss RFR and discuss the results of the last Friday meeting.

AG - can we get it done? The Board proposal may be reasonable 

BB - good observation. Board and community are fairly close - as such it is important to the process
for us to complete this to document the points of agreement of which there are many.

DM - Similar to AG comments - request we consider creating design teams a la CWG.

Alan Greenberg: So a commitment from the Board on what we agree on may be optimal. But that is a
decision that perhaps we need to defer at the moment.

BB - take the point on. Other comments etc. There are hard issues from mission and core values. and
will use the list to move this forward.

GS - some of the discussion on the list re Fiduciary Duties - which includes the Duty of Obedience.
As such mission and core values have a very critical impact and as such we need to get it right.

BB- we will adjourn.

Documents Presented

*
<https://community.icann.org/download/attachments/56139495/IRP%20Major%20Issues%205%20October%202015
.docx?version=1&modificationDate=1444062904000&api=v2> IRP Major Issues 5 October 2015.docx   |
<https://community.icann.org/download/attachments/56139495/IRP%20Major%20Issues%205%20October%202015
.pdf?version=1&modificationDate=1444062919000&api=v2> IRP Major Issues 5 October 2015.pdf

*
<https://community.icann.org/download/attachments/56139495/IRP%20Comments%202nd%20Draft%20Proposal%2
05%20Octo%202015.docx?version=1&modificationDate=1444062937000&api=v2> IRP Comments 2nd Draft
Proposal 5 Octo 2015.docx   |
<https://community.icann.org/download/attachments/56139495/IRP%20Comments%202nd%20Draft%20Proposal%2
05%20Octo%202015.pdf?version=1&modificationDate=1444062952000&api=v2> IRP Comments 2nd Draft
Proposal 5 Octo 2015.pdf

*
<https://community.icann.org/download/attachments/56139495/AOC.pdf?version=1&modificationDate=144408
0429005&api=v2> AOC.pdf

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