[client com] Draft Comment Letter and Updated Bylaws Matrix

[Flanagan, Sharon]

Dear All,

Attached please find:

1.  An updated ICANN bylaws matrix, clean and marked against the original draft; and

2.  A draft comment letter from CWG to CCWG to the CCWG’s 2nd draft proposal.

In addition, given the recent discussion on the appeals mechanism, we thought it might be helpful to have all of the references to the appeals mechanism from the final CWG proposal in one place (see below for those excerpts).

Best regards,
Holly and Sharon

Extracts from Final CWG Proposal (June 11, 2015):

Para 106:

The CWG-Stewardship proposal is significantly dependent and expressly conditioned on the implementation of ICANN-level accountability mechanisms by the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) as described below. The co-chairs of the CWG-Stewardship and the CCWG-Accountability have coordinated their efforts and the CWG-Stewardship is confident that the CCWG-Accountability recommendations, if implemented as envisaged, will meet the requirements that the CWG-Stewardship has previously communicated to the CCWG. If any element of these ICANN level accountability mechanisms is not implemented as contemplated by the CWG-Stewardship proposal, this CWG-Stewardship proposal will require revision. Specifically, the proposed legal structure and overall CWG-Stewardship proposal requires ICANN accountability in the following respects: …

6. Appeal mechanism. An appeal mechanism, for example in the form of an Independent Review Panel, for issues relating to the IANA functions. For example, direct customers with non-remediated issues or matters referred by ccNSO or GNSO after escalation by the CSC will have access to an Independent Review Panel. The appeal mechanism will not cover issues relating to ccTLD delegation and re-delegation, which mechanism is to be developed by the ccTLD community post-transition.


Para 160:
The CWG-Stewardship recommends not including any appeal mechanism that would apply to ccTLD delegations and redelegations in the IANA Stewardship Transition proposal. For further information, see Annex O.

Para 194:

The CWG-Stewardship’s proposed changes are to be implemented after NTIA approval of the IANA Stewardship Transition plan. Some changes are ready to be implemented, and others may require further assessment by the ICG as they may affect and be of interest to other communities involved in the IANA Stewardship Transition. For all changes, including changes that do not require further assessment by the ICG, the community will work with ICANN in implementation. The CWG-Stewardship expects that the following implementation items could be completed in approximately three to four months, in accordance with the advice of independent legal counsel: (1) identifying the ICANN assets that relate to the IANA functions to be assigned to PTI and assigning those assets to PTI pursuant to an assignment agreement to be entered into between ICANN and PTI, (2) incorporating PTI and drafting the PTI governance documents (i.e., articles of incorporation and bylaws) and (3) drafting, negotiating and finalizing the ICANN-PTI Contract.35 The CWG-Stewardship has attempted an initial list of elements for implementation as follows: …

·         Appeal mechanism: This have been requested of the CCWG-Accountability as part of a key dependency with the CCWG-Accountability as soon as their work is finalized.


Annex O:

While the CWG-Stewardship’s 1 December, 2014 draft proposal contained an appeal mechanism that would have applied to ccTLD delegation and redelegations, some question arose as to the level of support within the ccTLD community on aspects of this proposal (see below). Design Team B was formed to assess whether there might be sufficient consensus within the ccTLD community on such an appeal mechanism. DT-B decided to undertake a survey of the ccTLD community to assess this (see the survey and the results summarized below).



After informing the ccTLD community about the upcoming survey, it was sent to the ‘ccTLD World’ list, the most comprehensive list of the managers of the 248 ccTLDs on March 23, 2015 with responses accepted to 3 April 2015. Overall, responses on behalf of just 28 managers were received (see below). Such a low level of response was judged to be an insufficient basis to provide a mandate for the inclusion of an appeal mechanism in the CWG-Stewardship’s proposal. While acknowledging the limitations of drawing any conclusions from a survey with such a low response rate, it is nevertheless worthwhile pointing out that these limited responses tended to reinforce the overall recommendation.



While 93% of respondents (Q.1) believe there is a need for an appeal mechanism, only 58% (Q.2) believe that it should be developed and introduced now as part of the IANA Stewardship Transition and 73% (Q.3) agreed that it should be developed and introduced after the IANA Stewardship Transition has taken place. Questions designed to probe the level of consensus on the parameters of such an appeal mechanism (see Q.5 – Q.9) elicited no consensus suggesting that it would take considerable time for the ccTLD community to come to a consensus view on the details of an appeal mechanism. Some 71% of respondents (Q.3) indicated that they would not wish to see the design of such a mechanism delay the finalization of the IANA Stewardship Transition.


Survey of ccTLD Managers on Need for Appeal Mechanism for ccTLD Delegations and Redelegations
On 1 December 2014, the Cross Community Working Group on NTIA Stewardship Transition issued a draft proposal which contained a proposal for an “independent appeals panel”:
“Independent Appeals Panel (IAP) - The CWG-Stewardship recommends that all IANA actions which affect the Root Zone or Root Zone WHOIS database be subject to an independent and binding appeals panel. The Appeals Mechanism should also cover any policy implementation actions that affect the execution of changes to the Root Zone File or Root Zone WHOIS and how relevant policies are applied. This need not be a permanent body, but rather could be handled the same way as commercial disputes are often resolved, through the use of a binding arbitration process using an independent arbitration organization (e.g., ICDR, ICC, AAA) or a standing list of qualified people under rules promulgated by such an organization.”
There exists in the ccTLD community an apparent lack of consensus on the question of the introduction of an ‘appeals mechanism’ in respect of ccTLD delegations and redelegations.



At ICANN 51 in Los Angeles an overwhelming majority of ccTLD representatives at the 15 October 2014 ccNSO meeting indicated their wish for an ‘appeal mechanism’ as part of the IANA transition, though what was meant by ‘an appeal mechanism’ was not defined. In a survey of all ccTLD managers undertaken in November 2014, 94% of respondents agreed that ‘if the IANA operator does not perform well or abuses its position, the affected ccTLD should have the opportunity to (have access to) an independent and binding appeal process’. The expression of need resulted in the appeal mechanism proposal that the CWG-Stewardship released on 1 December 2014. The proposal indicates that such a mechanism could be used in disputes over the consistency of ccTLD delegation or redelegation decisions.

A survey was undertaken in January of this year of CWG-Stewardship members and participants (this includes representation from many communities, not just ccTLD managers) on many aspects of the CWG-Stewardship’s 1 December proposal. It found that 97% of respondents agreed that, “ccTLD registry operators should have standing to appeal delegation and re-delegation decisions to which they are a party that they believe are contrary to applicable laws and/or applicable approved ccTLD policy”. However when questions were posed about potential specific parameters of such an appeal mechanism support for it was reduced. For example, only 54% of respondents agreed that “ccTLD registry operators should have standing to appeal delegation and redelegation decisions to which they are a party that they believe are contrary to applicable laws and/or applicable approved ccTLD policy, even if the operator is not a party involved in the delegation or redelegation”. In addition, only 60% of respondents agreed that, “Governments should have standing to appeal any ccTLD delegation or redelegation decisions that they believe are contrary to applicable laws”.

This information suggests that while there may be support for an appeal mechanism in general, consensus may be difficult to achieve on some of the important aspects of such a mechanism, including:

·         Who would ‘have standing’ to appeal decisions,

·         What aspects of decisions might be subject to an appeal,

·         Whether the scope should be limited to determining whether the process followed was complete and fair,

·         Whether the dispute resolution panel would have the authority to substitute its own view on a delegation, for example, direct that the incumbent manager be retained rather than a proposed new manager, or

·         Be limited to requiring that the delegation process be repeated.



As a consequence, this survey is intended to determine whether they might be sufficient consensus within the ccTLD community as a whole to seek a binding appeal mechanism and if so, whether this should be sought as part of the IANA Stewardship Transition process. [The remainder of Annex O consists of the survey.]

Annex I - IANA Customer Service Complaint Resolution Process for Naming Related Functions:

Phase 2 (for IANA naming services only)

Para 381: Should the issue not be resolved after Phase 1 [Initial remedial process for IANA naming functions], the following escalation mechanisms will be made available to direct customers, the IFO and the ICANN Ombudsman: [FN 53]

a) If issue is not addressed, the complainant (direct customer), IFO or the ICANN Ombudsman may request mediation. [FN 54]

b) CSC is notified of the issue by complainant and/or the IANA Functions Operator. CSC reviews to determine whether the issue is part of a persistent performance issue and/or is an indication of a possible systemic problem. If so, the CSC may seek remediation through the IANA Problem Resolution Process (see Annex J).



c) The complainant (direct customer) may initiate an Independent Review Process or pursue other applicable legal recourses that may be available, if the issue is not addressed.

[FN 53: Non-direct customers, including TLD organizations,that are of the view that an issue has not been addressed through Phase 1 may escalate the issue to the ICANN Ombudsman or via the applicable liaisons to the CSC to Phase 2.]
[FN 54: The CWG-Stewardship recommends that as part of the implementation of this proposal, ICANN Staff explore possible approaches with regards to mediation such as, for example, Section 5.1 of the Base gTLD Registry Agreement (https://www.icann.org/resources/pages/registries/registries-agreements-en).]

Draft Proposed Term Sheet (Annex S):

ESCALATION MECHANISMS (IANA Customer Service Complaint Resolution Process)



·         Phase 1: If anyone experiences an issue with PTI’s delivery of IANA naming functions, the complainant can send an email to PTI, which will escalate the complaint internally as required. This process is open to anyone, including individuals, registries, ccTLD regional organizations and ICANN SO/ACs.

·         Phase 2: If the issue identified in Phase 1 is not addressed by PTI to the reasonable satisfaction of the complainant, then complainants that are direct customers only may request mediation. ICANN and CSC will be notified of the issue and CSC will conduct a review to determine whether the issue is part of a persistent performance issue or an indication of a systemic problem. If so, the CSC may seek remediation through the Problem Resolution Process described below. This process is only open to direct customers. Non-direct customers, including TLD organizations, who have issues unresolved in Phase 1, may escalate the issues to the ombudsman or the applicable liaisons to the CSC.

·         The complainant may also initiate an Independent Review Process if the issue is not addressed in the steps above.   [Note from Sidley:  We believe this should reference “direct customers.”]




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