[Area 1] Regarding review and redress

[Kavouss Arasteh]

Dear Thomas
I agree with the first part that there should be both.
I disagree with the second part that when the first does not respond the
second will be in place.
Pls read my argument sent more than 4 times saying that they are
complementary
THE FORMER IS PRE REQUISITOF THE LATTER
'The former has and will always be optional and gthe latter has been and
continue to be mandatory
We should not invent new things
Regards
Kavouss

2015-01-15 22:35 GMT+01:00 Thomas Rickert <rickert at anwaelte.de>:

> Would you agree to characterizing the process as follows?
>
> There needs to be both review and redress.
> As a general rule, there should be review first and where that does not
> resolve the issue, redress may be sought.
>
> Review gives the Board the opportunity to rectify a decision, either after
> having been approached by the aggrieved party or by another mechanism (such
> as the ombudsman).
>
> Redress forces the Board to rectify a decision.
>
> Best,
> Thomas
>
> --
> thomas-rickert.tel
>
> > Am 15.01.2015 um 18:04 schrieb Robin Gross <robin at ipjustice.org>:
> >
> > I think the requirement of a subsequent action - an extra step after the
> mechanism - that is required to change the decision is the salient
> distinction.  So in your example, after the Ombudsman makes his evaluation
> and decision, the board takes an action, possibly in the form of a new
> resolution to set aside the previous decision.  Or in the case of the IRP,
> that process is undertaken and its decision rendered, and then a separate
> step is necessary - the board making a decision to agree with an IRP that
> may have ruled against the organization.  So only after the evaluator
> (ombudsman, IRP, etc) renders its decision, and this other step is required
> - a change of heart perhaps on the part of the board to accept this
> decision that moves a mechanism from redress to review.  A board doesn't
> have the discretion to accept a court's ruling, so that is properly
> characterized as redress.  No action on the part of the board is required
> to undo or set aside what it had done after the co
>  urt rules.  The court has ruled and that is the end of it (accept for
> appeals of course).  But the necessary extra step of getting the board to
> undo or set aside the previous decision is not an automatic as you point
> out in your ombudsman example.  That is the key difference to redress v.
> review.  The ombudsman doesn't have the power to set aside a board a
> decision on his own.  But he may persuade the board to set it aside.  An
> IRP doesn't have the power to undo a board decision.  Only the board does.
> >
> > Thanks,
> > Robin
> >
> >
> >> On Jan 15, 2015, at 12:18 AM, Bruce Tonkin wrote:
> >>
> >> Hello Robin,
> >>
> >>
> >>>> 1.  I think some of the mechanisms that are labeled "redress" are
> actually "review".  See the definitions below, but basically, since
> mechanisms like ReconRequest and IRP and the Ombudsman are only making
> recommendations to the board to change its mind on a decision, and have no
> authority to set aside a decision on their own, they more appropriately
> categorized as "review" mechanisms (and not redress).
> >>
> >>
> >> Although in terms of an end-to-end process, once the Board approves a
> recommendation from mechanisms like ReconRequest and IRP and the Ombudsman
> it is possible to provide redress where a review has found that a decision
> has violated the bylaws etc. and where the review has recommended that
> ICANN provide redress.   In general when one of the existing accountability
> mechanisms finds fault in a decision by the Board, the Board would be
> seeking to provide some form of redress to the complainant.
> >>
> >> This is separate of course from the discussion about whether the
> outcome of an independent review is binding.
> >>
> >> Just wanted to note that the existing process "can" provide redress,
> just that currently the Board still does have discretion to approve or not
> approve any specific recommendation for redress.   If the Ombudsman
> recommended that as a result of a bad decision that the Board provide a
> payment of a Billion dollars to the complaint as a redress mechanism then
> that may be rejected, but if the redress was to allow an applicant to
> proceed to the next stage of say a new gTLD evaluation process - then I
> would expect the Board to provide such redress.
> >>
> >> I am using "redress" to mean a remedy or compensation for a wrong or
> grievance.
> >>
> >>
> >> Regards,
> >> Bruce Tonkin
> >>
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