[AT-Review] Version 10 - CONCERNS

Chris Disspain ceo at auda.org.au
Sun Oct 24 00:09:25 UTC 2010


All,

 

I'm very concerned that the current amendments to the language of the
first paragraph of WG4 recommendations has been so watered down that the
recommendation is now ineffectual.

 

The current draft language is:

 

"The ICANN Board should (as soon as possible, but no later than INSERT
DATE) seek input from a committee of independent experts on the
restructuring of the three review mechanisms - the Independent Review
Panel (IRP), the Reconsideration Process and the Office of the Ombudsman.
This should, in particular, address the following topics: 

 

I believe that the paragraph is basically meaningless. It simply asks the
Board to seek input, and makes no reference to previous recommendations to
the Board which have not been followed. Further, the removal of the
references to the sort of review it should be (broad, comprehensive etc)
means that at no point in the recommendation as a whole is anything
specific said about the IRP. The sub-points to the recommendation provide
specific input re Ombudsman and reconsideration but nothing on IRP. 

 

The previous language was:

 

"The ICANN Board should implement (as soon as possible, but no later than
INSERT DATE) Recommendation 2.7 of the 2009 Improving Institutional
Confidence Implementation Plan which calls on ICANN to seek input from a
committee of independent experts on the restructuring of the review
mechanisms - the Independent Review Panel (IRP), the Reconsideration
Process and the Office of the Ombudsman.  This should be a broad,
comprehensive assessment of the accountability and transparency of the
existing mechanisms, their inter-relation, if any (i.e., do the three
processes provided for a graduated appeals process) with a view towards
reducing costs, issuing timelier decisions, and covering a wider spectrum
of issues in the IRP.  The utility of the Community Re-Vote and Board
removal mechanisms should be assessed and appropriate action taken.  Were
these issues adequately discussed to include them?"

 

1.    I have no issue with the removal of the community re-vote and Boars
removal mechanisms sentence.

2.    I believe that it is the ATRT's role to review what the Board is
doing re accountability and transparency and that on this basis it is
completely within our mandate to recommend that the Board carry out
something that has already been recommended. We have done this several
times in  the report. We have recommended they follow the previous
recommendation and pay directors. We have recommended that they follow the
recommendations of the Board and Nom Com reviews. I do not understand why
there is a problem recommending they follow the recommendations of the
PSC.

3.    The additional part of the paragraph is critical, in my view, if
this recommendation is going to have any credibility. We have discussed at
length the issues that we have received feedback on in our public comment
process and in interviews. This is neatly encapsulated in the second
sentence of the previous language. Also the second sentence provides clear
direction to the Board on how comprehensive the assessment should be etc.
This is also critical.

 

Fabio's comment:

 

"The first recommendation of section 4 does not look like a recommendation
at all.  It calls on somebody else to do the job that, I am sure, the
Community expected us to do.   We have 101 reasons for being unable to
make a substantial recommendation at this moment, but it is necessary to
give at least a word of explanation.   Otherwise we could be seriously
criticised.    As a minimum, in the sixth line, instead of "of the
existing mechanisms" we should be saying "of the existing three
mechanisms" (plus the "Community re-vote", if we want to add it).
Otherwise the current text looks very much like our own mandate."

 

I do not agree with this. It is NOT the ATRT's job to review the IRP or
the Ombudsman function. It is the ATRT's job to review the performance
under the AoC. Therefore it is perfectly acceptable for us to recommend
that the Board follow the recommendations of a previous review (by the
PSC) even if that recommendation is itself that there should be a review. 

 

I consider that the previous language is far more of a substantial
recommendation that the current language.

 

I consider that the current language will lead to us being seriously
criticised. 

 

I have in my diary that we have a conference call set for 11.00 UTC on
Monday. If that's correct perhaps we can use that to debate this issue if
need be.

 

Cheers, 

 

Chris Disspain | Chief Executive Officer

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From: at-review-bounces at icann.org [mailto:at-review-bounces at icann.org] On
Behalf Of Brian Cute
Sent: Sunday, 24 October 2010 04:26
To: at-review at icann.org
Subject: [AT-Review] Version 10

 

RT,

 

Attached is the next version.  The following version will be our final
version that is sent to the translation team.  If we do not reach
agreement on WG4, I will sent the balance of the document to the
translation team to begin that process while we finalize WG4.

 

Edits in this version include:  Warren's edits from his email yesterday
and Olivier's edits from today.  My view of WG4:  we have represented that
there is a divergence of opinion on the ATRT regarding the issue of a
binding appeals mechanism.  Olivier's proposed edits are designed to
address the concern that we are asking ICANN to undertake a review when
the ATRT should be doing a review and offering firm recommendations.  I
have added some language in the Findings section of WG4 that explains the
ATRT view of the incomplete IIC work.  Olivier's language narrows the WG4
recommendations to the specific issues that have been identified by the
ATRT with respect to the 3 appeals mechanisms.  I believe this is a
balance approach to address the divergent views of the Review Team and a
way to make recommendations that call for concrete action as opposed to an
open review.

 

At this point, the document needs to go forward if we are to respect our
intention to have the comment period close prior to Cartagena.  

 

Please submit your final view on the proposed language.  If there is
serious dissent, dissenting opinions will have to be drafted.

 

Regards,

Brian



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