<html><head></head><body style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><div>Thanks for the pointer. Looking at the staff analysis of the 2 comments submitted, one can see where a miscommunication may have came from. In response the RySG's concern about inappropriately heightening the standard of review for decisions, the staff analysis implies that decisions taken in violation of Articles or Bylaws wouldn't be part of this new standard of review. But they are. All the matters before the IRP are evaluated at the malfeasance level including matters regarding decisions taken in violation of the Articles and Bylaws. So there seemed to be a misunderstanding as how this standard would apply in the analysis provided to justify its adoption. Perhaps this observation could be helpful as we try to come up with solutions going forward.</div><div><br></div><div>Best,</div><div>Robin</div><div>
<p><span class="Apple-style-span" style="font-family: Calibri; font-size: 16px; ">Staff Analysis: "...After review of the comments in coordination with the ASEP, in response to the RySG, it is important
to note that the imposition of a standard of review into the Independent Review process assures that
the process will be used for review, and not for a rehearing. There is a need for Board decisions to be
able to be relied upon and implemented, unless there is the type of failure identified by the ASEP
(decision taken in violation of the Articles of Incorporation or Bylaws, or with a conflict of interest, or
not believed to be in the best interests of the organization)..." </span></p></div><div><br></div><br><div><div>On Jan 8, 2015, at 10:59 AM, Samantha Eisner wrote:</div><br class="Apple-interchange-newline"><blockquote type="cite">
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<div>To confirm, there was public comment received on the Bylaws amendments: <a href="https://www.icann.org/resources/pages/asep-recommendations-2012-10-26-en">https://www.icann.org/resources/pages/asep-recommendations-2012-10-26-en</a></div>
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<div>Best, </div>
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<div>Sam</div>
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<div>Samantha Eisner</div>
<div>Associate General Counsel, ICANN</div>
<div>12025 Waterfront Drive, Suite 300</div>
<div>Los Angeles, California 90094</div>
<div>USA</div>
<div>Direct Dial: +1 310 578 8631</div>
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<span style="font-weight:bold">From: </span>Robin Gross <<a href="mailto:robin@ipjustice.org">robin@ipjustice.org</a>><br>
<span style="font-weight:bold">Date: </span>Thursday, January 8, 2015 at 7:53 AM<br>
<span style="font-weight:bold">To: </span>Accountability Cross Community <<a href="mailto:accountability-cross-community@icann.org">accountability-cross-community@icann.org</a>><br>
<span style="font-weight:bold">Subject: </span>Re: [CCWG-Accountability] judicial/arbitral function<br>
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Noncommercial users have also been critical of the quiet change of the standard to win an IRP. It was a rather odd move, for the standard used to decide if a board member can be
<b><i>personally liable</i></b> for bad decisions to then be used to decide whether the organization has to follow its articles or bylaws at all. Wow - talk about a stretch! (Was there a comment period on that bylaws change?)
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<div>I agree that this standard must be brought back in line with reality. Another issue is the excessive costs a party must put forth in order to proceed with an IRP. Ponying up a million dollars to pay for the Jones Day lawyers' work just isn't something
that 99% of the world can do. Noncommercial users couldn't fund it when there was a clear violation of the organization's bylaws regarding the TM+50 policy. As it currently sits, the IRP is a way to avoid accountability - not achieve it.
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<div>Robin</div>
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<div>On Jan 8, 2015, at 2:54 AM, Bruce Tonkin wrote:</div>
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<div>Hello Paul,<br>
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<blockquote type="cite">
<blockquote type="cite"> And that, in turn emphasizes why it is necessary as part of the transition to define the Board's/ICANN's scope of authority. A judicial/arbitral function can only resolve disputes and cabin capture/abuse if it has an articulated standard
against which to measure the dispute. In the absence of such pre-existing guidance the judiciary/arbiter is simply substituting his/her/its own judgment for the Board and the Community, which is not a good thing.<br>
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Agreed. The current primary documents that an independent function could base a judgement on is whether ICANN is complying with its bylaws and its Articles of Incorporation.
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For example the current independent review process identified in the bylaws states :<br>
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<a href="https://www.icann.org/resources/pages/bylaws-2012-02-25-en#IV">https://www.icann.org/resources/pages/bylaws-2012-02-25-en#IV</a><br>
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1. ".. ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws.<br>
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2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected,
the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."<br>
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Also:<br>
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"Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board
has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on:<br>
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<span class="Apple-tab-span" style="white-space:pre"></span>a. did the Board act without conflict of interest in taking its decision?;<br>
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<span class="Apple-tab-span" style="white-space:pre"></span>b. did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and<br>
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<span class="Apple-tab-span" style="white-space:pre"></span>c. did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?"<br>
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The Independent Review Process Panel shall have the authority to:<br>
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"a. summarily dismiss requests brought without standing, lacking in substance, or that are frivolous or vexatious;<br>
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b. request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties;<br>
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c. declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws; and<br>
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d. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP;<br>
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e. consolidate requests for independent review if the facts and circumstances are sufficiently similar; and<br>
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f. determine the timing for each proceeding."<br>
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The discussion in recent years is that the output of the Independent Review process is not binding. Ie it is not binding arbitration - simply an independent "review".
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The bylaws could be updated to better " define the Board's/ICANN's scope of authority", and the Cross Community Working Group could consider what changes are necessary to the current Independent Review mechanism. For example the ability and process to update
the bylaws could be updated.<br>
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Regards,<br>
Bruce Tonkin<br>
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