[Area 1] Regarding review and redress

Fri Jan 16 20:36:33 UTC 2015

Dear Colleagues,

I have reviewed (no pun intended) this discussion to update the section 
of our definition document attempting to define what accountability 
mechanisms should be labelled "review" or "redress".

Of course, no redress can happen without first "reviewing" the decision 
at stake. And within the thread we looked at the distinction from the 
point of view of a party to the dispute.

But for the sake of our work, we need clear delineation between a 
"review" mechanism and a "redress" one. I propose to base this 
delineation on the ability of the outcome of the mechanism to be binding.

I will make sure we spend some time in Frankfurt to discuss this. Below 
is the relevant extract of the definition document.

Best
Mathieu

a._Review mechanisms_

The definition of “review” is : “a formal assessment or examination of 
something with the possibility or intention of instituting change if 
necessary.”

The group considers review mechanisms to be mechanisms that assess the 
performance and relevance of processes or structures, and provide non 
binding recommendations for improvement.

Examples include:

-Periodic structural reviews of SOs and ACs (as currently mandated in 
the ICANN Bylaws)

-AoC-mandated ICANN organizational reviews for Accountability and 
Transparency; Security, Stability, and Resiliency; WHOIS; and 
Competition and Consumer Trust.

b._Redress mechanisms_

The definition of “redress” is : “remedy or compensation for a wrong or 
grievance”.

The group defines redress mechanisms as mechanisms that focus on 
assessing the compliance or relevance of a certain decision, and can 
conclude to its confirmation, cancellation or amendment. Thus, an 
accountability mechanism of the “redress” category, always starts by 
“reviewing” the decision. However, its output of is binding.

Examples include:

-Independent Review (if it is considered to be binding)

-State of California or jurisdictions where ICANN has a presence Court 
decisions

Le 16/01/2015 13:06, Bruce Tonkin a écrit :
> Hello Roelof and others commenting on this thread,
>
>>> Thanks for that, Bruce. And so, a review can lead to a redress, but does not necessarily do so.
> If a review concludes a „a wrong or grievance” (Bruce’s wording) and the advice is binding, redress will follow. If it does not conclude that, there will be no redress. If the advice is a recommendation, redress might follow. Or not.
>
> As Kavouss has noted reviewing whether the Board has not followed its bylaws or breached an agreement is the first step, and then if fault is found - redress is a second step.
>
> Some processes include the review and redress within the same panel, and some do not.
>
> Using UDRP for example   (https://www.icann.org/resources/pages/policy-2012-02-25-en).
>
> The review step considers whether:
>
> (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
>
> (ii) you have no rights or legitimate interests in respect of the domain name; and
>
> (iii) your domain name has been registered and is being used in bad faith.
>
>
> If the UDRP finds in favour of the complainant, the redress step is specified as:
>
> "The remedies available to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation of your domain name or the transfer of your domain name registration to the complainant.".
>
>
> Both the domain name registrant and complainant also have access to court proceedings:
>
> "The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded"
>
>
> Looking at the "review" mechanisms in the bylaws:
>
> Ombudsman - this is really a mediation service.
>
> "The principal function of the Ombudsman shall be to provide an independent internal evaluation of complaints by members of the ICANN community who believe that the ICANN staff, Board or an ICANN constituent body has treated them unfairly."
>
> "The Ombudsman shall serve as an objective advocate for fairness, and shall seek to evaluate and where possible resolve complaints about unfair or inappropriate treatment by ICANN staff, the Board, or ICANN constituent bodies, clarifying the issues and using conflict resolution tools such as negotiation, facilitation, and "shuttle diplomacy" to achieve these results."
>
> This mechanism does not follow a conventional review and redress process.
>
> "The Ombudsman shall be specifically authorized to make such reports to the Board as he or she deems appropriate with respect to any particular matter and its resolution or the inability to resolve it."   Generally the Board looks to the Ombudsman to recommend improvements in processes based on the outcome of resolving disputes.
>
>
>
>
> Reconsideration - this is a review process.
>
> The process reviews whether:
>
> "a. one or more staff actions or inactions that contradict established ICANN policy(ies); or
>
> b. one or more actions or inactions of the ICANN Board that have been taken or refused to be taken without consideration of material information, except where the party submitting the request could have submitted, but did not submit, the information for the Board's consideration at the time of action or refusal to act; or
>
> c. one or more actions or inactions of the ICANN Board that are taken as a result of the Board's reliance on false or inaccurate material information."
>
> Note though that the application form for submitting a reconsideration request has a provision for the complaint to state what form of redress they are seeking:
>
> https://www.icann.org/en/system/files/files/request-form-11apr13-en.doc
>
>
> 	"9.	What are you asking ICANN to do now?
> 	(Describe the specific steps you are asking ICANN to take.  For example, should the action be reversed, cancelled or modified? If modified, how should it be modified?)"
>
> This is taken into account in any recommendations from the reconsideration process.      The specific redress appropriate for a particular reconsideration request can vary widely - so it seems appropriate for the complaint to state what redress they are seeking from the Board.
>
>
>
> The Independent Review Process Panel ("IRP panel") is also a review process:
>
> " process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws."
>
> If the independent panel finds a Board action that is  inconsistent with  the Articles of Incorporation or Bylaws - the Board would then work with the affected party for an appropriate redress.   However the specifics of redress are not described in the bylaws currently that I can see - probably also because this is a general mechanism and the type of redress could vary widely.
>
>
> Picking up Robin's point  I would assume that with respect to many laws that a court would be considering - specific redress mechanisms are probably defined within those laws.   I believe that in general a court will first decide whether a law or agreement has been broken, and then there is a separate "sentencing" step/hearing  that happens if the party in question is found guilty of breaking a law  or in breach of an agreement.   In determining the appropriate redress to provide,  the court will also consider precedent  from similar cases in the past in making this determination.
>
> Regards,
> Bruce Tonkin
>
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-- 
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr
Twitter : @mathieuweill
*****************************

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