[Ccpdp-rm] NOTES | ccPDP Review Mechanism WG | 3 March at 21:00 UTC

[Joke Braeken]

NOTES | ccPDP Review Mechanism WG |  3 March at 21:00 UTC



  1.  Welcome and roll call




Welcome by Stephen



2.                   Administrative announcements, if any


ccPDP3-part 1 public comment started

Initial Report on the Third ccNSO Policy Development Process (ccPDP3): Retirement of ccTLDs

https://www.icann.org/public-comments/ccpdp3-1-retirement-cctlds-2021-03-03-en


Discussion with Sam Eisner deferred to a next meeting



3.                   Action Items, if any


None



4.                   Requirement of process (continued) Jamboard link


https://jamboard.google.com/d/1MBopxNRfIz_60NesP6Kfv5wwxjsGG_SUVN_XFuKp69A/edit?usp=sharing <https://urldefense.com/v3/__https:/jamboard.google.com/d/1MBopxNRfIz_60NesP6Kfv5wwxjsGG_SUVN_XFuKp69A/edit?usp=sharing__;!!PtGJab4!pTUog9T30X8Lo6F8rdYWMmmC1mHDmkVTimRzbTsDwJK7_eGYie6Hari5djTaXhAmckoaGDed$>



1.       Review of what to include exercise


Staff combined the different sticky notes. To be put in a doc. Requirements of the WG with respect to the Review Mechanism

2 weeks ago (as recorded in the notes): discussion around RFC1591, reference to FOI, what to include, not to include, nice to include

Process and policy must be timeless: suggested by Nick

Reference to Joke’s notes from last meeting.


Kim D: The point of my request that the policy be ‘timeless’ was that if there is superseding policy coming out for the ccNSO in the future, it is automatically applicable instead of locking the RM to RFC 1591 and FOI specifically

Bart: we will get to that later on


The FOI interprets RFC1591, but In the FOI there is no reference to the IANA review Board.

To be taken into account, since some consider it a starting point

RFC1591 nor FOI refer to the retirement policy.  Probably at one point to be included


Patricio: revocation - manager to appeal

But does not specify the board, nor delegation, or retirement


Eberhard: application for a TLD, that is where it is mentioned in the RFC

Any decision that affects a ccTLD manager efficiently, may be appealable.

Bart: refers to the significantly interested parties

>>> Must include:

  *   One external independent tribunal
  *   A binding decision (it should replace the litigated decision)
  *   Review must be substantial


Stephen: new evidence, to be deferred to later discussion

Bart: “tribunal” was the language used by Nigel. Broader interpretation. Does not automatically mean arbitration

Nigel: 3 stages:

  *   Internal review. By the people that made the decision
  *   Mediation
  *   Binding arbitration
  *   Court proceedings

Tribunal used to mean “judge”. Could be 1 or many.


Bart: process and policy must be timeless

Kim: the review mechanism would be intended to apply to the policy at the time the review is being conducted. Ret policy in final stages. If you tie the review mechanism to close to RFC1591 and other docs, this could cause interpretation difficulties. The applicability of the policy should be generally stated as the adopted policies at the time.

Bart: how does that relate to the work done to date, with respect to identifying the decisions that should be subject to the RM? If the link is too loose, every step where there is a decision could be subject to the review

Kim: counter argument. “This could be applicable to delegation as defined in RFC1591”. What if the ccNSO develops policy, and the source docs no longer apply? Make it future-proof, to a reasonable extent.

Eberhard: the RFC language is helpful here. Agrees with Kim.

Nigel: discussion in IOT-IRP group on limitation and repose. Whatever the RM, there has to be finality in the decision

Bernie: relative to binding, we need to think about the fact that the IRP can only decide if the bylaws were followed or not. They do not decide on the remedy. They only decide there is a fault

Eberhard: replacing the previous decision. Likes this reference

Arbitration will be binding on all parties. ccNSO Members cannot go to court. If you want to go to court, the cctld manager needs to cease to be a member. Board replacing the decision that is being reviewed. The word “board” is also used in the RFC.

Nigel: does not agree to call it a board. Confusion with icann board. Panel seems more appropriate


>>> Elements not to include:

Bart: general agreement that we should look on the existing mechanism to use or build on, to save time/money

Will look into alternative ways in existing mechanism

Eberhard: in Namibia courts don’t like to replace decisions by the gvt by the court. Can be a never-ending story. Because of finality aspect, the panel will replace or confirm the decision.

Eberhard: arbitration panels have set-ups. Not necessary to say to look at it under law. Procedural fairness, natural justice.

Bart: not a specific body of law to be included. There must be a discussion around it.

Eberhard: be careful. Not talking about the system of law that determines the outcome of the arbitration. You have to have an arbitration agreement. UK supreme court case (9 oct. 2020).

Bart: choice of law is a subject to be further discussed. Scope, relevance still to be determined

Eberhard: how have the ICANN review panels solved this problem? To be asked to Sam Eisner. Forum shopping is on.

Bart: concerns still valid (2014) ? stress test needed


Closed the discussion around the parameters of the RM


Staff will update the doc based on the discussion notes. Revised version to be circulated well ahead of th next meeting


Stephen: will we be in a position where we can productively re-engage with icann legal?

Eberhard: we have not discussed 2-tier or 3-tier mechanism. Needs to be settled before we talk to icann legal

Bernie: Sam has been working on this. Personally recommends that the group gains a lot from the discussion with Sam




2.                   Pros and cons of various panels



3.                   Pro cons two or three step process

Jamboard. Point by Eberhard on potential escalation path

We discussed panel types.


Zoom polls being displayed.

Escalation path: 2 step


Nigel: PTI complaint process. Word complaint could be misinterpreted

Bart: term by IANA. IANA complaint process. Available for every step where PTI is involved

Eberhard: internal remedy. Must be exhausted first

Bart: could be voluntary mediation

Maarten: UDRP is no arbitration (at least according to Dutch law)

Nigel: mediation is without prejudice. Mediation required before going to court.

Eberhard: court-connected mediation

Bernie: going back to IRP. the advantages are significant to both parties. CEP is optional. To encourage parties to undertake this first, some of the costs in an IRP can be covered by icann


Escalation path : 3 step

Do you want to allow for an appeal of the independent reviewer? Including appeal


Stephen: full IRP mechanism gives chills


Bernie: IRP currently looks at an appeals mechanism to its decision.

Expensive. Finding appropriate people and train them. For the ccNSO this would be a step even further.

Eberhard: needs to be useful to small and medium-sized ccTLDs. Otherwise it is not fair.

Bernie: the cost issue to be discussed with Sam.

Maarten: understands the arguments. The procedures in all should not take too much time, and should not be too costly

Should the outcome be binding? If it is binding, there will not be any court proceedings afterwards. On the other hand, people may not use the RM, but go to court directly, since there they will have an appeals opportunity

Eberhard: we make policy to which ccNSO members are bound


Zoom poll: in favour of 2-step approach, or 3-step approach?


Nick: you have the complaint process. Mediation is optional, genuine independent appeal step

Too much. 2 independent appeal steps: independent review, independent appeal

Costly


Eberhard: wants a fundamentally safe process



5.                   Next meetings


17 March 05:00 UTC
7 April 13:00 UTC
21 April 21:00 UTC



6.                   AOB


Thanks all. Bye



Joke Braeken
ccNSO Policy Advisor
joke.braeken at icann.org

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