[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11

Mon Jan 25 16:19:17 UTC 2016

Dear Paul.

Thank you very much for your kind words and your judgment  ??

I have fully understood the entire process as I have been involved in
another entity which also applied IRP.

Perhaps I was not clear in my previous message.

What I said was there should be a process to clearly distinguish between
those allegations which merits to be further pursued and those which would
not merit.

I do not think that the purpose of IRP is that every day tens of
allegations based on just a  personal judgement of an individual without
any valid reasons and without any foundation  invoke IRP,unless we create
occupation of the panelist and those will get those position .This would
give rise to misuse of the IRP.

Kavouss

2016-01-25 17:05 GMT+01:00 Paul Rosenzweig <
paul.rosenzweig at redbranchconsulting.com>:

> Dear Kavouss
>
> Then, I think y ou have misunderstood the IRP process altogether.  It is
> open to any materially affected party to challenge a Board action as
> counter
> to the Bylawas, and most notably the mission.  That, indeed, is the single
> most essential part of the entire accountability process -- a standard of
> Board conduct and an independent review of that conduct.  Without it we
> have
> no accountability at all
>
> Paul
>
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
>
>
>
> -----Original Message-----
> From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> Sent: Monday, January 25, 2016 10:34 AM
> To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
> Cc: Malcolm Hutty <malcolm at linx.net>; Greg Shatan <gregshatanipc at gmail.com
> >;
> ICANN <ICANN at adlercolvin.com>; Thomas Rickert <thomas at rickert.net>;
> <accountability-cross-community at icann.org>
> <accountability-cross-community at icann.org>; <acct-staff at icann.org>
> <acct-staff at icann.org>; Sidley ICANN CCWG <sidleyicannccwg at sidley.com>;
> Greeley, Amy E. <AGreeley at sidley.com>; Grapsas, Rebecca
> <rebecca.grapsas at sidley.com>
> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10,
> 11
>
> Dear Paul
> Then that allegation against ICANN , decision should go trough all steps of
> process.
> I do not believe that an individual should simply make an allegation to the
> Board, s decision without passing through an established procedure
> otherwise
> tens of allegations called for every day .that was not the objectives of
> IRP.Such inefficient course of action would totally counterproductive and
> detriment to the healthy process of ICANN works Regards Kavouss
>
> Sent from my iPhone
>
> > On 25 Jan 2016, at 16:22, Paul Rosenzweig
> <paul.rosenzweig at redbranchconsulting.com> wrote:
> >
> > Dear Kavous
> >
> >
> > If and only if the person materially being affected by the Board
> > decision makes a colorable allegation that the Board's actions are
> > inconsistent with the bylaws ....  Whether or not they are actually
> > inconsistent is for the IRP to decide, in the end ...
> >
> > Cheers
> > Paul
> >
> > Paul Rosenzweig
> > paul.rosenzweig at redbranchconsulting.com
> > O: +1 (202) 547-0660
> > M: +1 (202) 329-9650
> > VOIP: +1 (202) 738-1739
> > Skype: paul.rosenzweig1066
> > Link to my PGP Key
> >
> >
> >
> > -----Original Message-----
> > From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> > Sent: Monday, January 25, 2016 9:55 AM
> > To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
> > Cc: Malcolm Hutty <malcolm at linx.net>; Greg Shatan
> > <gregshatanipc at gmail.com>; ICANN <ICANN at adlercolvin.com>; Thomas
> > Rickert <thomas at rickert.net>;
> > <accountability-cross-community at icann.org>
> > <accountability-cross-community at icann.org>; <acct-staff at icann.org>
> > <acct-staff at icann.org>; Sidley ICANN CCWG
> > <sidleyicannccwg at sidley.com>; Greeley, Amy E. <AGreeley at sidley.com>;
> > Grapsas, Rebecca <rebecca.grapsas at sidley.com>
> > Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9,
> > 10, 11
> >
> > Dear Sir,
> > Yes , if and only if the Board,s decision is INCONSISTENT with  or  in
> > violation of Bylaws?!!!!
> > Regards
> > Kavouss
> >
> > Sent from my iPhone
> >
> >>> On 25 Jan 2016, at 15:48, Paul Rosenzweig
> >> <paul.rosenzweig at redbranchconsulting.com> wrote:
> >>
> >> Dear Kavouss
> >>
> >> No IRP will review GAC advice.  But the community did agree
> >> (overwhelmingly) that IRP review would apply to Board decisions in
> >> response to GAC advice, which is, of course, exactly what Malcolm
> >> posits
> > ...
> >>
> >> Paul
> >>
> >> Paul Rosenzweig
> >> paul.rosenzweig at redbranchconsulting.com
> >> O: +1 (202) 547-0660
> >> M: +1 (202) 329-9650
> >> VOIP: +1 (202) 738-1739
> >> Skype: paul.rosenzweig1066
> >> Link to my PGP Key
> >>
> >>
> >>
> >> -----Original Message-----
> >> From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> >> Sent: Monday, January 25, 2016 9:45 AM
> >> To: Malcolm Hutty <malcolm at linx.net>
> >> Cc: Greg Shatan <gregshatanipc at gmail.com>; Paul Rosenzweig
> >> <paul.rosenzweig at redbranchconsulting.com>; ICANN
> >> <ICANN at adlercolvin.com>; Thomas Rickert <thomas at rickert.net>;
> >> accountability-cross-community at icann.org; acct-staff at icann.org;
> >> Sidley ICANN CCWG <sidleyicannccwg at sidley.com>; Greeley, Amy E.
> >> <AGreeley at sidley.com>; Grapsas, Rebecca <rebecca.grapsas at sidley.com>
> >> Subject: Re: [CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9,
> >> 10, 11
> >>
> >> Dear All,
> >> Perhaps people totally forgotten that NO IRP SHALL BE INVOKED BY THE
> >> COMMUNITY.
> >> FOR GAC ADVICE.
> >> This has been discussed  and confirmed .pls refer ti WP 2 and CCWG
> >> previous NOTES and REPORTS Regards Kavouss
> >>
> >> Sent from my iPhone
> >>
> >>> On 25 Jan 2016, at 10:57, Malcolm Hutty <malcolm at linx.net> wrote:
> >>>
> >>>
> >>>
> >>>> On 24/01/2016 21:32, Greg Shatan wrote:
> >>>> Paul,
> >>>>
> >>>> I was halfway through writing an email that said exactly that.
> >>>>
> >>>> This may be due to the lawyers re-interpreting "duly taken into
> account"
> >>>> in a way that I don't agree with and which I think is incorrect.
> >>>
> >>> I also agree that this would be a substantial change.
> >>>
> >>> To support that, I would ask you to consider the follow, not
> >>> unlikely, scenario.
> >>>
> >>> The GAC has advised the Board to do something, but what it has
> >>> advised is not entirely clearly, and there is certainly ambiguity as
> >>> to how it might be implemented. The Board has then done something. A
> >>> materially affected party, unhappy with the Board's action and
> >>> preferring an alternative that would take a more extreme view of the
> >>> GAC advice, challenges the action in the IRP. The Board takes the
> >>> view that it has taken the GAC's advice into account and that what
> >>> it has done is reasonably consistent with the GAC advice; the
> >>> complainant argues that the action was not consistent with it.
> >>>
> >>> If the IRP finds that factually the complainant is correct to allege
> >>> that the Board's action was not consisistent with the GAC advice,
> >>> what is the consequence of that? It seems to vary according to which
> >>> standard we choose:
> >>>
> >>> - If the current standard applies, that the Board "duly take into
> >>> account" GAC advice, the IRP may still find that the Board did do that:
> >>> since they noted the GAC's advice, considered it, and believed
> >>> (albeit
> >>> incorrectly) that what they were doing constituted a reasonably
> >>> implementation of it, it is hard to say they did not meet this
> standard.
> >>> The IRP will however order the Board that to bring itself back into
> >>> compliance with the bylaws it must notify the GAC that it has acted
> >>> inconsistently, and try to find a mutually acceptable solution. The
> >>> action, however, may stand: a solution need not necessarily involve
> >>> cancelling the action, but might be found through supplementing the
> >>> action with another.
> >>>
> >>> - If Holly's standard applies, that the Board "must not act
> >>> inconsistently" with GAC advice, then the mere finding that the
> >>> Board has acted inconsistently invalidates that decision. The action
> >>> must be quashed, if it is possible to do so; failure to do so would
> >>> consistute perpetuating the bylaws breach.
> >>>
> >>> This is a material change, that may significantly affect the outcome.
> >>>
> >>> Personally, I do not believe this change is needed or desirable. For
> >>> that reason, I respectfully disagree with accepting Holly's advice
> >>> on this particular case.
> >>>
> >>> Kind Regards,
> >>>
> >>> Malcolm.
> >>>
> >>> --
> >>>          Malcolm Hutty | tel: +44 20 7645 3523  Head of Public
> >>> Affairs | Read the LINX Public Affairs blog London Internet Exchange
> >>> | http://publicaffairs.linx.net/
> >>>
> >>>               London Internet Exchange Ltd
> >>>     Monument Place, 24 Monument Street, London EC3R 8AJ
> >>>
> >>>       Company Registered in England No. 3137929
> >>>     Trinity Court, Trinity Street, Peterborough PE1 1DA
> >>>
> >>>
> >>> _______________________________________________
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> >
>
>
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