[CCWG-ACCT] New (and long) IRP Decision

[Kieren McCarthy]

Just read it all.

My summary:

* Vistaprint complained that its application for '.webs' was found to be
confusingly similar to a number of applications for '.web'. It points out
that in other single/plural cases, ICANN has taken a closer look but didn't
in its case.

* The IRP panel recommends that ICANN's Board specifically look at the
issue of whether Vistaprint was treated equally and fairly.

* It notes that this recommendation is not binding.

* It notes that ICANN's Board Governance Committee did a good job on
Vistaprint's reconsideration request and covered the issues fairly and in
depth.



The panel digs into the IRP process itself a little - as have the other IRP
reviews. It finds:

* That ICANN must stop claiming that the IRP should be deferential toward
ICANN's decisions. The issue is decided.

* That IRP decisions can be both binding and non-binding. They are binding
when the panel makes a finding but not binding when it comes to deciding
what ICANN has to do in response.

* In other words, if the IRP finds that something was not done correctly
and has to be fixed, ICANN is obliged to do so. But it is not obliged to do
what the IRP comes up with as a solution. It can devise its own solution.

* The panel is not happy about its restricted role. It finds that the rules
covering the IRP and the rules covering the third party review experts
contradict ICANN's own bylaws.



My personal view:

* The changes that ICANN's legal department made to the IRP and the
third-party expert rules in order to ensure that ICANN Corporate can never
be overruled continue to cause serious problems.

* Put simply: ICANN has created its own ICANN-friendly version of what are
legal/arbitration norms - and as a result they don't work properly.

* There is no effective way to challenge decisions made through the new
gTLD process. Each accountability step moves further and further away from
addressing the actual core issue in a particular case. This just creates
frustration and paperwork.

* I can't help but feel that this constant drive to create ICANN-friendly
special versions of commonly agreed processes is exactly what we are
looking at with the MEM accountability model proposed by ICANN.

* I wish the ICANN/internet community would stop telling itself that ICANN
is somehow so special that it needs custom rules for everything it does. It
doesn't and this approach creates more problems and more confusion down the
line.



Kieren



On Sun, Oct 11, 2015 at 3:54 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

> Although I have not read this decision thoroughly, it seems very
> interesting. The arbitrators hold that ICANN is the prevailing party , but
> cite concerns about the IRP process.  I look forward to reading it more
> carefully.
>
>
> J. Beckwith Burr
> Deputy General Counsel & Chief Privacy Officer
>
>
> From: Greg Shatan <gregshatanipc at gmail.com>
> Date: Sunday, October 11, 2015 at 6:13 PM
> To: Accountability Community <accountability-cross-community at icann.org>
> Subject: [CCWG-ACCT] New (and long) IRP Decision
>
> Vistaprint v. ICANN.  Issued October 9.  Have not read it yet....
>
> https://www.icann.org/resources/files/1194117-2015-10-09-en
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_files_1194117-2D2015-2D10-2D09-2Den&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Xq9ie2PDt_PtLEeKTVL9dhYWhc75Onp5QbndbDKRTfk&s=OZSYzTSNh4ENmgmDkY7nEnQnz62X3ovgZtqm0Gsuc44&e=>
>
> Greg
>
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> Accountability-Cross-Community mailing list
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>
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