[CCWG-ACCT] Comparison of independent review processes

Fri Oct 9 18:34:30 UTC 2015

Thanks for forwarding this memo.  The odd thing about the memo is that it STARTS from the point of having a binding arbitration decision without addressing:

1.       What it takes under the Board proposal to get to the point of having that binding decision (including FULL consensus  among all SOs and ACs for every decision, selection of arbitrators - including fighting over who they are, figuring out when they MIGHT be available (cause all the best ones are booked months in advance).  It is not even super clear to me that the Board will tolerate live witnesses in the arbitration - this is because the cited Rules can always be modified by the parties by contract and that could come out as a Board proposal later in the game if the MEM is adopted - to save money.

2.       What happens to the status quo during the long argumentative process of binding arbitration - for example, is a director removed or not removed?  Is a budget approved or not approved?  In the private sector, a long binding arbitration process can be a very good way to avoid an injunction because it stops the plaintiff (in this case the Community) from enforcing its action in court.

In short, the memo only addresses what happens when you finally get a binding arbitration decision and that is at the very end of the proposed very lengthy MEM enforceability process.   Anyone who saw the time it took to get a decision in .africa (with all the surrounding circumstances) should be very wary of claims that the MEM is just as enforceable as the single member model. As our CCWG-ACCT has advised on many occasions and very consistently, it is simply not.

To state that this memo answers the community's concerns about the Board's proposal is misleading.  It simply restates the fact that a binding arbitration order is enforceable in court.    That in and of itself does not mean the MEM proposal provides effective enforcement.

Anne
[cid:image001.gif at 01D10284.778C3130]

Anne E. Aikman-Scalese, Of Counsel

Lewis Roca Rothgerber LLP

One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611

(T) 520.629.4428 | (F) 520.879.4725

AAikman at lrrlaw.com<mailto:AAikman at lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/>

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Samantha Eisner
Sent: Thursday, October 08, 2015 11:48 AM
To: Gregory, Holly; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía
Cc: Sidley ICANN CCWG; ACCT-Staff; ICANN-Adler; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Comparison of independent review processes

I am forwarding this on behalf of Jones Day, as they do not have sending rights to this list.

Note from Jones Day:

Dear CCWG,

As Holly noted in her cover email, CCWG Counsel's "Comparison of Independent Review Processes" was provided to Jones Day in advance of it being circulated to the CCWG.  In the interests of transparency, please note that Jones Day did not provide line edits identifying the areas of disagreement with CCWG Counsel, but instead provided the attached memorandum for CCWG Counsel's consideration.  CCWG Counsel did not revise its Comparison document to reflect the thoughts set forth in the attached Jones Day memo.  Sidley/Adler understood that this memo would be shared with the CCWG after their Comparison document was circulated.

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of "Gregory, Holly" <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>>
Date: Wednesday, October 7, 2015 at 10:24 PM
To: Thomas Rickert <thomas at rickert.net<mailto:thomas at rickert.net>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, León Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>>, ACCT-Staff <acct-staff at icann.org<mailto:acct-staff at icann.org>>, ICANN-Adler <ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>>, "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Comparison of independent review processes

Dear CCWG Co-chairs, Members and Participants,  Attached please find a comparison of key characteristics of  (1) ICANN's current IRP, (2) the IRP under the CCWG 2nd Draft Proposal (in the context of the Community Mechanism as Sole Member Model), and (3) the IRP and MEM set forth in the Board Proposal as requested in L.A.
We shared this with Jones Day and ICANN Legal in advance so that they could provide any corrections regarding our understanding of the IRP and MEM as set forth in the Board Proposal.
Kind regards, Holly and Rosemary

Sent with Good (www.good.com<http://www.good.com>)

________________________________
From: Grapsas, Rebecca
Sent: Wednesday, October 07, 2015 11:45:50 PM
To: Gregory, Holly
Subject:

****************************************************************************************************
This e-mail is sent by a law firm and may contain information that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail and any attachments and notify us
immediately.

****************************************************************************************************

________________________________

This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151009/9a315aae/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.gif
Type: image/gif
Size: 3765 bytes
Desc: image001.gif
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151009/9a315aae/image001.gif>