[CCWG-ACCT] Two questions on MEM Arbitration

Arun Sukumar arun.sukumar at nludelhi.ac.in
Mon Sep 14 04:21:37 UTC 2015


Hello,

A couple of questions on the proposed MEM arbitration process:

a. How is it different from the Independent Review Panel Mechanism?

In the Board's response to the CCWG proposal, it has correctly restated the
three areas that IRP will be invoked for:

   1. Hear and resolve claims that ICANN through its Board of Directors or
   staff has acted or has failed to act in violation of its Articles of
   Incorporation or Bylaws (including any violation of the Bylaws resulting
   from action taken in response to advice/input from any Advisory Committee
   or Supporting Organization);
   2. Reconcile conflicting decisions of process-specific “expert panels”;
   and
   3. Hear and resolve claims involving rights of the Sole Member under the
   Articles or Bylaws (subject to voting thresholds).

The Board suggests the MEM arbitration mechanism would be more appropriate
for No. 3. Given that the MEM and IRP mechanisms are strikingly similar
(this is my understanding from a cursory reading of the MEM proposal), why
create this distinction? From the MEM standpoint, what is special about
this arbitration method that it is competent to adjudicate rights involving
the community, that the IRP cannot?


b. MEM Arbitration and enforceability in California courts.

My concern (again from a preliminary understanding of the MEM proposal) is
that the MEM arbitration ecosystem, thanks to its enforceability in Cali
courts, will create a community of legal experts and arbitrators in the US
that the ICANN community will become excessively reliant on. The
influential role that lawyers have played in the CCWG's working is
illustrative. If the nature of the ICANN community is expected to change
over the course of the next few years (in terms of diverse and
international representation), wouldn't this requirement of enforceability
in California courts be an artificial obstacle? What stops the MEM model
from being enforced in any court of law anywhere in the world - can't this
can be incorporated in ICANN's bylaws?


Arun

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