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

Aikman-Scalese, Anne AAikman at lrrlaw.com
Tue Sep 22 19:04:32 UTC 2015


Very interesting stuff as we evaluate Accountability.  The panel took this By-Law into account but when requested to reconsider its 2014 Order that witnesses who had offered statements would be present at the hearing, it apparently relied not only on its Supplementary Procedures but also on Articles III and IV of the ICANN Bylaws regarding Transparency and Accountability.  Specifically, the holding was

"22. The Panel finds that this last sentence in Paragraph 12 of ICANN's Bylaws, unduly and improperly restricts the Panel's ability to conduct the 'independent review' it has been explicitly mandated to carryout...."

In Paragraph 26, the Panel goes on to conclude that the IRP accountability and review process would have no meaning if the Panel were not permitted to hear and question witnesses.    This appeared to be based in part on the fact that applicants waived all judicial recourse in the award process when they filed their applications.

This reminds us that when evaluating enforcement mechanisms, the Community must be mindful of the true effectiveness of Accountability mechanisms.  I think this is part of what Becky was saying when she talked about judicial independence.

Interestingly, the ICANN Board complied with the Panel's Order for live witnesses at the hearing.  Does this mean they actually did violate the ICANN ByLaws by doing so?  I guess it is pretty easy to see how the Board can get caught "between a rock and hard place" in certain situations.  (U.S. slang cultural reference to no good alternative).

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: Alan Greenberg [mailto:alan.greenberg at mcgill.ca]
Sent: Monday, September 21, 2015 8:34 PM
To: Aikman-Scalese, Anne; 'Bruce Tonkin'; CCWG Accountability
Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider

I happen to largely agree with the Panel's findings, but this seems to be the week for my seeing humour and irony in lots of places.

At 21/09/2015 10:57 PM, Aikman-Scalese, Anne wrote:

>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.

Article IV, Section 3.12 of the Bylaws reads: "In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only; all evidence, including witness statements, must be submitted in writing in advance."

By agreeing to live testimony and questioning witnesses, ICANN would have been in violation of its Bylaws.

Alan



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