[DTM Escalation] Escalation Procedures Draft for Initial Discussion

[Gomes, Chuck]

Individual party dispute

1.       Where a TLD registry operator has a dispute regarding agreed levels of service or performance with the IFM, and the parties have been unable to negotiate a satisfactory outcome, the TLD registry operator will lodge a written complaint with the CSC. The CSC will request a written response from the IFM within 10 working days, will assess the circumstances, and will attempt to facilitate an agreed outcome between the parties. All disputes between the IFM and TLD registry operators will be archived for future reference.


2.       Should this stage of resolution fail, the CSC will engage the services of an external mediator and will provide reports to the mediator on previous attempts at resolution. The IFM will also provide a report to the mediator. If the mediator is able to bring the parties to an agreed outcome, appropriate remedial action will be taken and records of the dispute will be archived.



3.       Should mediation fail, an Independent Appeals Panel[BH1]  (IAP – see below) will be engaged by the CSC. All previous attempts at resolution will be considered. The IAP will take a decision that is binding upon both the TLD registry operator and IFM.


“Systemic failure”
The escalation process for a “systemic” or critical failure of the IFM regarding agreed levels of service or performance will follow precisely the same process as a dispute raised by a TLD registry operator with the exception of the first step.

1.       The CSC is empowered to determine a significant failure of the IFM, either due to the outcome of a periodic audit or the CSC’s evaluation of a rising number of TLD registry operator complaints.



2.       The CSC will request a written report from the IFM within 30 days to supplement the outcomes of the audit and/or record of complaints. If the CSC determines that the response is adequate, the CSC will direct the IFM to take remedial action and may choose to initiate additional audits or reviews of the on-going performance of the IFM



3.       Should this stage of resolution fail, the CSC will engage the services of an external mediator and will provide reports to the mediator on previous attempts at resolution. If the mediator is able to bring the parties to an agreed  appropriate remedial action will be taken and records of the dispute will be archived.



4.       Should mediation fail, an Independent Appeals Panel (IAP – see below) will be engaged by the CSC. All previous attempts at resolution will be considered. The IAP will take a decision that is binding upon the TLD registry operator[BH2]  [BH3] (where applicable), CSC and IFM.


A.      Independent Appeals Process
Copied below and attached as a Word document in case anyone wants to use the redline function to insert comments are some initial thoughts that I request we use to start our discussions for DT-M.
Chuck
It is not envisioned that the IAP outlined here would be specific to concerns with the IANA functions, rather, we seek to outline a set of criteria that should be incorporated into the larger ICANN-wide mechanism currently being developed by the CCWG on Accountability  to ensure uniformity of process across all ICANN appeals mechanisms.
The IAP will be a binding mechanism, utilising the services of an independent, external arbitration organisation.  The IAP’s scope will be limited to providing arbitration between the IFM and a TLD registry operator and, when appropriate, the IFM and the CSC in respect to disputes on agreed levels of service or performance The IAP will not address policy-related matters, and disputes arising in respect the delegation or re-delegation of a TLD are specifically excluded from this process.
The IAP may make the following findings:

1.       That the IFM has not breached agreed levels of service or performance in which case the matter will be treated as resolved and no further action taken.

2.       That the IFM has breached agreed levels of service or performance and such breach is capable of remedy in which case the IFM shall have XX days to remedy the breach.

3.       That the IFM has breached agreed levels of service or performance and such breach is not capable of remedy.
In the event that the IAP finds a breach that is not capable of remedy or in the event that a remediable breach is not remedied within the prescribed time frame then the CSC may proceed to the ‘nuclear option’. All findings of the IAP will be published and made available to the stakeholder community.

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 [BH1]I would recommend using a different label for this function to avoid confusion with the previous IAP.  One suggestion would be “Dispute Resolution Panel”

 [BH2]How would the registry be bound by the IAP’s decision?  Perhaps agreeing to this would be a condition of participating in the IAP process.

 [BH3]Agree with Byron’s comment.

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