[AT-Review] Version 10 - CONCERNS

Sun Oct 24 12:55:02 UTC 2010

RT,

This email should have been received 8 hours ago but was stuck in my Outbox.
To be clear, I will send the balance of the document to the translation team
today (Sunday, U.S. EDT) and we will have the call as scheduled to resolve
WG4.

Regards,

Brian

From: Brian Cute [mailto:briancute at afilias.info] 
Sent: Sunday, October 24, 2010 8:48 AM
To: 'Chris Disspain'; at-review at icann.org
Subject: Re: [AT-Review] Version 10 - CONCERNS

RT,

Tomorrow I will send the balance of the document to the translation team
with the WG4 section (and the WG4 references in the earlier portions of the
document) removed.  We have a divergence of views on WG4 that must be
resolved.  I was hoping to cancel the call on Monday but it appears we need
to have that call for the unique purpose of resolving the WG4 portion of the
report. We will resolve the WG4 portion and send it to the translation team
so the document can be issued to the public as a whole.

Regards,

Brian

From: Chris Disspain [mailto:ceo at auda.org.au] 
Sent: Saturday, October 23, 2010 8:09 PM
To: briancute at afilias.info; at-review at icann.org
Subject: RE: [AT-Review] Version 10 - CONCERNS
Importance: High

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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