[Ccpdp-rm] NOTES | ccPDP3 - RM | 17 June 2020 | 04:00 UTC

Wed Jun 17 05:00:18 UTC 2020

Dear All,

Please find included below the notes from today’s ccPDP3-RM meeting, held on 17 June 2020 at 4 UTC.

Best regards,

Joke Braeken

  1.  Welcome and roll call

Welcome by Stephen Deerhake, Chair ccPDP3-RM.

Request by Eberhard Lisse to switch off videos, to save bandwidth.

2.                  Administrative announcements, if any

3.                  Action Items, if any

3.                  IRP and Engagement Process – ICANN Legal

  *   Both Nigel and Becky are on the Board accountability committee. Both are attending today’s meeting.
  *   Presentation by Amy Stathos. Slides can be found on the wiki:  https://community.icann.org/x/ioXsBw
     *   Bylaws supplemented by Interim supplemental rules (developed by IRT) and the international arbitration rules for the international centre for dispute resolution.
     *   Independent third party review. Defined in the process is a dispute as any action or failure to act by ICANN org or individual members of those groups, that violate the bylaws. (see slide deck)
     *   Definition of claimant included in the slide deck displayed by Amy as well.
     *   IRP Standard of Review
     *   IRP Proceeding: deadlines as specified in the Interim Supplemental Procedures. 120 days following the day on which the claimant becomes aware. 12 month deadline of the date of action or inaction.
     *   Arbitration looks a lot like international arbitration. Includes written briefs, limited to document production, witness statements, expert reports, interim hearings, final hearing.
     *   IRP Panel Decision and Board Consideration.  Many occasions where the panel members make recommendations, but the Board decides.
     *   About the composition of the IRP Standing Panel.  Establishment asap.
     *   Cooperative Engagement Process (CEP). as a precursor to an IRP provided by bylaws art 4. CEP is voluntary.

Since the Oct 2016 bylaws have been put in place, there are 3 actions’s IRPs pending.

Becky: IRP since the beginning of time has not been historically binding on ICANN. That changed after the IANA transition. Important change. Combined with the standing panel of arbitrators. This will result in decisions that get precedential value. The goals would be to provide guidance going forward.

Prior to Oct 2016 only the Board conduct was challengeable under an IRP. Since the transition, staff action is also challengeable

Nigel: possibility of reconsideration request prior to the IRP. The accountability mechanisms do apply to ccNSO, with the exception of the subject matter of this PDP.

Eberhard: concerns with time. To be discussed later. Issue that is not helpful for our discussion.

Allan: follow-on to Nigel’s comment.  Actions or failures on behalf of staff or the board, our focus has been looking at decisions. If our focus on decisions, as opposed to actions or failures: are those equivalent?

Amy: action or inaction. Failure to act is the proper terminology. Actions or decisions taken by Board or staff. Affirmative actions. Inactions are when they are potentially asked to act, and choose not to.

Peter: when it comes to the claimant being eligible to invoke the IPR. the party affected or party affected in future, cannot be identified within the 12 months.

Amy: correct under current bylaws and currently supplemental procedures.  Community process to challenge a process established or a decision. Entire community to be harmed by this process, needs to be demonstrated.

Becky: you want some finality with respect to decisions. Is the 12 month limit enough? This usually comes up in the corner cases. GNSO would  develop policy, icann board would adopt it. 15 months later icann org interprets the policy and takes some action. That is when the harm to the individual occurs. The fact that the harm occurred 15 months later, still means that that individual gets to bring their case.  It does not mean 12 months and you are done. 12 months from the time you could have been armed.

Eberhard: internal remedy mechanisms which should be exhausted before going external. Probably voluntary mediation, followed by arbitration (.africa lawsuit: in court you cannot use arguments that are contrary to those used in arbitration). Helpful to notice.

Nick: sensible process. Why is there a reason to discuss this further?

Eberhard: The current problem I have with IRP is, we need to carefully review the panel. We might use the same panel, same structure, but not be too abrupt in our decisions. Structured approach is preferred where internal remedies are exhausted before we go to further steps.

Allan: at the time of the IANA transition and the idea of a review mechanism being considered, the ccTLD community was concerned about the one size fits all mechanism. Separate WG was established, which i chaired. We did a survey at the time with the ccTLD community, the outcome was : ccTLDs wanted a review mechanism, but not a one size fits all. The IRP as we saw it was not developed at the time. What can we do to tweak the IRP? The iana transition was in 2016, and we still do not have a full IRP panel. If we would develop a completely new mechanism, it would take years before it comes into effect.

Bernard: Allan covers most of my points. There was the one size fits all issue, and we knew that there would be changes made to the IRP, and this led to the carve out for the ccTLDs.

4.                  Next meetings

1 July (12:00 UTC) - cancelled

15 July (20:00 UTC)

4.                  AOB

none

5.                  Closure

Bye all.

Joke Braeken
ccNSO Policy Advisor
joke.braeken at icann.org<mailto:joke.braeken at icann.org>

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