[Ccpdp-rm] NOTES | ccPDP Review Mechanism Working Group | 29 September 2021 at 20:00 UTC

[Joke Braeken]

NOTES | ccPDP Review Mechanism Working Group

29 September 2021 at 20:00 UTC



  1.  Welcome & Roll Call


Welcome by ccPDP3-RM chair Stephen Deerhake.

Attendance will be taken from the Zoom Room.



2.                   Administrative Announcements (if any)


None

Bernard: doc out for comment on the list. completed.



3.                   Action Items



4.                   Finalize document on “Binding” of the Question for ICANN Legal


Decision by the mechanism.

  *   Option 1

Goes against the ccPDP3-RET policy

  *   Option 2

2 options were posted on the list.

  *   Option 3 (Eberhard suggested)

Some comments on the list. Most of the comments leaned towards option 1.

Eberhard: We should have done the .africa thing first. ICANN bylaws require it to be fair, transparent, and reasonable. We need to go away from narrowing it down too much.

Bernard: Some participants in the sub-group felt it was better to be as narrow as possible to current IRP procedures.

Eberhard: judgement notes it is arbitration. De novo principle was applied. Icann accepted binding. Not narrow it unnecessarily.

Bernard: do people agree with option 1?

Eberhard: do not agree to poll. Debate has not been concluded, there are few members attending today.

Nick: takes Eberhard’s point regarding the spontaneous poll. Requirement to IFO is to be reasonable.  Comfortable with option 3.

Patricio: generate a scenario of a hypothetical case, as a decision from the panel.

Allan: tactics. Make it as easy as possible for icann legal to give us a reasonably specific answer. Could we combine 1 and 3? See if it changes their answer?

Peter: option 2 is too vague. Not sure he understands option 3. Try to win a battle from the past? Follow Allan’s suggestion.

Bernard: this is a toy scenario. We are not committing to anything here.  We only use this example for this test with ICANN legal. Try and find a space, where there is as little room as possible for icann to avoid the question on whether this is binding or not.

Eberhard: narrow situation as an example. Suggestion: “Refusal by IFO to ...etc.” to be removed

Bernard: good suggestion

Patricio: unreasonable has an important place.

Bernard: clearly mention that this is only for this example

Questions to be submitted to icann legal. Group does not expect an answer from ICANN Legal until November, at least.



5.                   Appeal Judgement in the .AFRICA case


Eberhard: top level domain. Name. names can have rights. Independent review process: Judges ruled it an arbitration. Independent standard review de novo. Directly applicable to us. Standard of review? De novo is the way to go. Arbitrators thought they had the power to tell icann what to do. Irp said it was binding. Board voted on this. Lower court dismissed it. Appeals court confirmed the dismissal. Icann board can now not say “this is not binding”, if it previously was binding. Icann committed to meaningful review. Commitment to openness.

Nick: interesting how californian courts look at the icann bylaws. Excellent decision. Very logical. Under English law it would be a breach of public fairness.

Maarten: agrees. Point with fairness is helpful. This decision came after an IRP, which is a long and complex process, which we are not looking for. The simplicity we are looking for… will it be received in the same way? Is a helpful decision.

Bart: qualification of the IRP as an arbitration?

Maarten: if it is an arbitration, it is bound by rules. The bindigness is in the law in the NL. yes, has an effect

Nick: governed by statutory frameworks, if it is an arbitration. Big significance. Binding, if certain criteria are followed. Long established legal tradition.

Eberhard: the IRP is an arbitration. As long as it is fair and reasonable, it is fine. The problem is the time and the costs.

Patricio: arbitration is a trial, with a judge here. Court in california did the duck test. If it walks like a duck, and talks like a duck, it is a duck. All cctlds to have access to it.

Eberhard: in Namibia both parties agree on arbitrator



6.                   Open Items


Review escalation paths.

Barnard. Explains alternatives.

  *   Alternative 1. IRP has an interim step, namely CEP, which is optional. We could work on an interim process, which would meet all requirements, except binding.

Bernard likes the idea of having an independent entity to have a look at it. Germany: concept

Bernard: exactly that idea. Affected party would know before it goes to the board. 30 to 90 day process to provide a response, which the IFO would be required to wait on. If they agree, and change their decision, ok. If they don’t they need to attach the independent advice when it goes to the room.

Stephen: thank you Claudia for stepping in

Bernard: The middle part is an interim step. Potentially some effect, even if it is not binding.

Maarten: puzzled about the PTI/IFO complaint process. You already need to know what the recommendation is to be able to complain

Bernard: needs to be adjusted.

Eberhard: not grossly violates california law. See IFO internal process.  IFO has never dealt in an extremely unreasonable manner.

Bernard: will draft strawman by middle of the week, latest by 8 Oct.. People are required to read it, and to work on it during the next week.

Kim: https://www.iana.org/help/complaint-procedure

Bart: 1 meeting on 13 Oct. before ICANN72.



7.                   AOB


None



8.                   Next Meetings


October 13

Nov 3 or 10? Proposal to move to 10 November. Chairs are not available on the 3rd, ICANN72 will conclude on the 29th.


Next meetings: 13 October, we do not meet during ICANN72, 10 November.


Thank you.



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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://mm.icann.org/pipermail/ccpdp-rm/attachments/20210930/381223c4/attachment-0001.html>