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

Wed Mar 17 08:25:57 UTC 2021

Joke . . please note that I specifically DISagree with the use of the
English the term 'cost-neutral' but stated small and medium sized ccTLD
managers should not have to pay large costs to access justice. (Eberhard
agreed with my re-statement of his use of the expression.)

Thanks.

On 17/03/2021 06:25, Joke Braeken via Ccpdp-rm wrote:
> 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
> <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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