[CCWG-ACCT] Your public comment re replacement of IANA provider

Tue Sep 22 04:47:10 UTC 2015

De ar All,
I have cked the Matrix and the Memo
There is several inconsistencies between the two
Kavouss

2015-09-22 4:57 GMT+02:00 Aikman-Scalese, Anne <AAikman at lrrlaw.com>:

> Bruce,
>
> The difficulty I see here is that the .africa  case was focused on whether
> ICANN violated its own procedures and the panel held *unanimously* that
> it did.  There was also arguably "undue government influence" (against NTIA
> condition for transition) because the panel found unanimously that the NGPC
> (which was delegated full Board authority) failed to deal properly with the
> GAC recommendation in several respects.   In this regard, the panel
> appeared to rule that based on its By-laws, ICANN has an obligation to
> investigate the nature and basis of GAC consensus advice and also under
> certain circumstances to obtain an expert opinion in relation to such
> advice.  (I have no idea personally whether that is correct but the panel
> so held.)
>
>
>
> The panel also thought it inappropriate that ICANN filed arguments
> resisting live testimony before the panelists.  They thus issued an interim
> ruling  that the judges would be able to question the witnesses and
> ultimately did so.  So the Board was seen by the panel as uncooperative in
> this respect.
>
>
>
> My only point here it that it may be oversimplifying things to
> characterize the .africa case as one where the first party complained, the
> second party denied, then the first party won and the Board complied.    We
> all have a community interest in making sure that the Final Proposal as
> recommended to NTIA will pass scrutiny in this regard.  In other words,
> Board compliance with ICANN’s own procedures and By-Laws must be RAPIDLY
> enforceable and not result in long, drawn-out proceedings like .africa.
> (And of course Alan keeps asking about enforcement of the Articles of
> Incorporation – which I think reads Core Mission and Values.)
>
>
>
> The beauty of the Sole Member structure is in the ability to exercise
> statutory Community Powers.   The CCWG has been advised that the full scope
> of such powers is apparently only available within the membership structure
> so I think many of us are still struggling with the MEM proposal in that it
> appears to be duplicative of the IRP, but moves the issue to an SO/AC level
> .    However, I had thought that IRP was already available to SOs and ACs –
> perhaps not?  Can you please clarify again the FAQ as to why the MEM is not
> merely duplicative of the IRP?
>
>
>
> The other big issue lurking here is the time that existing procedures take
> in order to execute accountability measures.  I think it is a significant
> weakness in the current structure and possibly also in the proposed MEM.
>
>
>
> Thank you for your diligence in responding to all these questions from the
> CCWG.  I agree with others that this is a very useful process and am, as
> you know from previous posts, quite concerned about finalizing a proposal
> that will pass muster in Congress even in the face of the issues raised by
> .africa and .amazon (as well as contractual compliance.)
>
>
>
> In regard to the last item, there were many public comments to the effect
> that ICANN’s mission should include contractual compliance and this goes
> well beyond technical issues.  (Disclosure: I participated in IPC comments
> on this point.)  Clearly ICANN has a responsibility to enforce contracts
> that include obligations on the registries that are not technical in
> nature.   For example, PIC enforcement rests within ICANN.  The PIC Dispute
> Resolution Process is not an outside process occurring between two
> independent parties at WIPO or elsewhere.   Further, it is clear there is
> interest on the part of community members to bring into play a Human Rights
> role for ICANN in its mission and core values which arguably could result
> in contractual obligations for the registries that would need to be
> enforced by ICANN, either via PIC or other mechanism.    Thus, contractual
> enforcement must be a part of ICANN’s mission.  Certainly this goes well
> beyond a “limited technical” role.
>
>
>
> These are tough issues.  Thanks for your willingness to “dive deep” in the
> analysis.
>
>
>
> Anne
>
>
>
> 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 | www.LRRLaw.com
>
>
>
> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] On Behalf Of Bruce
> Tonkin
> Sent: Saturday, September 19, 2015 4:38 PM
> To: CCWG Accountability
> Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA
> provider
>
>
>
> Hello Eberhard,
>
>
>
>
>
> >>  in the .AFRICA case at least (and I don't remember the older ones
> well) ICANN was not the model for cooperation, was it now?
>
>
>
> Well as I understand it - the two sides put forward their case, and the
> complainant won the case.
>
>
>
> The ICANN Board then complied with the outcome of the IRP.
>
>
>
> Regards,
>
> Bruce Tonkin
>
>
>
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