[Ccpdp-rm] NOTES | ccPDP3 Review Mechanism WG | 17 March 2021 (05:00 UTC)

[Joke Braeken]

Dear All,

Please find included below the notes form today’s ccPDP3-RM meeting held on Wednesday, 17 March at 5 UTC.

Best regards,

Joke Braeken



  1.  Welcome and roll call


Welcome by Chair Stephen Deerhake



2.                   Administrative announcements, if any


Public comments for ccPDP3-ret ends 14 April

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


Comment from Patricio Poblete sent to Stephen: FOI Report mentions review mechanism.

Experts from ccTLDs would hear IANA and the complainant and decide whether or not to take the complaint further.

Eberhard: I can live with Patricio’s proposal, but for fairness sake I would suggest that:

1. IFO selects one panel member

2. the ccTLKD Manager selects one

3 the two selected one select a third one, and should they not be able to decide on one, we need to come up with a fair mechanism to do so



3.                   Action Items


No action items from previous meeting



4.                   Requirements discussion with ICANN Legal


Slides prepared by Sam Eisner

Recap of what was discussed in February 2021.


Areas for further clarification:


>>> Is the scope still open? Binding decision of IANA or Board?


Bart: the latest version of the doc you read has not been vetted yet. Number 4 was still unclear at the time, and is still unclear

Eberhard: RFC said that decision should be binding. We do not need to include in our developed policy an appeal mechanism on our review mechanism. Binding means to ICANN and ccNSO members. They do not have a legal recourse in this. Therefore jurisdiction is not our problem. The mechanism: will you have some form of law or jurisdiction. Under what legal framework are RFC panels proceeding? Placeholder. Early stages of the discussion

Sam: choice of law is further down.

ccNSO policies are only applicable to ccNSO members. What happens to non-members? Those external to the process? Concern to apply this equally to all ccTLDs, whether or not they are a member of the ccNSO?

Eberhard: RFC is clear. If 2 parties cannot come to an agreement they can apply for a review. 2 contending parties: IFO and the ccTLD manager. First do the internal remedies and process. Nothing we can do to prevent a ccTLD manager from suing.

Nigel: agrees with intent. Cost-neutral. ccTLD managers are not large corporations.

Eberhard: fan of fundamental fairness. Small ccTLD managers cannot afford a US lawyer that charges 500 USD per hour.

Stephen: asks Eberhard to explain on the mailing list what is meant by fundamental fairness


Action item #1:

Eberhard to share on the WG-mailing list what he means by fundamental fairness


>>> Corporate Governance Fundamentals


Icann board cannot defer decision making to other bodies. Fiduciary need discussed by several lawyers during IANA transition.

Issue: empower an entity outside of ICANN/PTI to perform the iana function is not possible


Eberhard: this is an important point. We did not consider this before. Should we inform Council we ran into an issue: we cannot develop a binding policy.

Peter: confusion. Defer decision-making to other bodies: understands. But is the ICANN Board also not able to subject itself to mediation?

Sam: the board can and does subject itself to challenges of its decisions. Outcome of the challenge is important. IRP for instance. Board to be held accountable for every decision it makes. The outcome of that challenge cannot dictate to the Board what it must do to remedy. Board is expected to act accountably. There is the ability to build in meaningful review or appeal mechanisms. But they need to be supportable and allowable within the corporate governance structure.

Risk: The community could take an IRP declaration and walk in court. The court can compell actions, but the arbitration panel cannot compell actions.

Nigel: urgent.

Bart: this is an important point to be dealt with. To what extent are external reviews feasible, within the sketched parameters?  Bart requests Sam to come up with a document in a digestible form, on what is feasible, to focus the discussions by the WG.


Action item #2:

Sam Eisner to share on the WG-mailing list the parameters within which the reviews are feasible


>>>> Questions


Q1. “ccNSO members cannot go to court”

Eberhard: ccNSO members are bound by icann policy. non-ccNSO members are not. While you are a ccNSO member you cannot take icann to court for policy


Q2. What is anticipated to happen in the mediation? Impacts applicability and cost issues.

Nigel: needs to be more than just a procedural review. Look at fundamental fairness.

Question regarding mediation. How is it developed?

Sam: understands the value of mediation. But what is the dispute about? There is a value of looking at things procedurally. Asking for a re-look at the info, to make sure the right decision is reached. This is not really an appeal. It does not create a legal question that you mediate over. What are the questions, beyond asking for the fulsome review?

Eberhard: fundamental fairness. Courts decide to narrow issues: Only award remedies that were asked for. RFC is clear: A panel formed by IFO, takes a decision which is final.

Q3. Who is part of the dispute?

Nigel: difficult to compel government to participate in an out of country area. That is their problem, if they do not want to participate.

Sam: agrees. It is a reality to face

Nigel: contested delegation. Strict: delegation of new TLDs, change of managers is another bucket to consider.

Sam: that was intended.


ICANN Board role: confirm the process went as expected. Is there value in a review. Did IANA do what it was supposed to do? Why insert a step before the Board decision. Changing Board role to accepting review?


Stephen: group has a lot to consider.

Thank you to Sam on behalf of the Working Group. We will follow-up soon.



5.                   Pros / cons various panels (time permitting)



6.                   Next meetings


7 April 2021 | 13:00 UTC

ccPDP3 RM / ccPDP4 IDN community webinar | 16 April at 08:00 UTC and 16:00 UTC

21 April 2021 | 21:00 UTC


Bart: 4-week gap due to ICANN70.  Staff will incorporate the points into the frame document, with the questions. Start discussing them, step by step. Ideas on how to tackle the individual points. Would be appreciated if you Sam could be present at the next meeting

Action item #3:
Staff to update the frame document, based on today’s discussion

15 April 2021 | 08:00 AND 16:00 UTC – ccPDP Review Mechanism and ccPDP IDN update to the community webinar
Content of the ccPDP3-update will be covered at the 7 April meeting: group needs to agree on what to address.

                Action item #4:
                Staff and leadership team to start working on the update by ccPDP3-RM at the 15 April webinar.


  1.  Closure

Thank you all


Best regards,

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

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