[Gnso-newgtld-wg-wt3] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - Track 3 - 6 June 2017

[Emily Barabas]

Dear Work Track members,

Please find below the action items and discussion notes from yesterday’s meeting.  These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. The meeting recording and chat transcript are available at: https://community.icann.org/x/DBLfAw.

Slides from the call are attached for reference.

Kind regards,
Emily

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Notes:

1.  Welcome / Update SOIs

-- no updates

2.  Review / Revise Agenda

-- no revisions

3.  WG Plenary Co-Chair Update

- Primary focus - completing CC1 work and preparing draft recommendations. Last meeting focused on predictability and community engagement.

- Discussion of comments coming from GDD on "gating" issues that will need to be settled before GDD can begin its work towards subsequent procedures.

- Work looking ahead to geographic names sessions at ICANN59.

4.  Accountability Mechanisms Applicable to New gTLD Program

a. Review of ICANN-Org-Wide Mechanisms

-- see slide 3 for overview

i) Ombudsman Office

ii) Complaints Office

iii) Reconsideration Request Process

iv) Independent Review Panel Process

v) Accountability and Transparency Review Team (ATRT) Process

vi) Documentary Disclosure Information Policy (DIDP)

vii) Law suits?

b. gTLD Specific Accountability Mechanisms

-- see slide 4 for overview

i)  PIC Dispute Resolution Procedure

-- this group will look at the actual process, WT1 will look at the PIC

ii)  Trademark Post-Dispute Resolution Procedure (being addressed by RPMs PDP)

iii) Independent Objector Process

-- also Registration Restrictions DRP

5.  Questions to Consider:

a.  Standard of Review (procedural, substantive) appropriate for this instance (new gTLDs)?

- substantive review is necessary to get to the root of some problems. In 2012 round, the mechanisms did not provide for this, or there was a lack of ability to "think outside the box" in getting to the root of the underlying problem.

- the accountability mechanisms need to give better guidance to the people reviewing the cases about how to come to a resolution. There was so much restriction on what can be looked at.

- more instruction to third-party dispute resolution providers may be necessary.

- Staff: It may make sense to think about the phases of accountability separately. On the one hand, there is ICANN’s accountability to the evaluation procedures, and on the other hand applicants’ ability to seek redress to decisions and actions of ICANN and its providers through post delegation procedures. And then perhaps it might make sense to think of the accountability of registries and their commitments in the application and in the registry agreement.

Chat excerpt:

Rubens Kuhl: I also believe one degree of substantive review is needed. Local court system allows 1st and 2nd instances to look at substance, produce evidence and witnesses.

Rubens Kuhl: After that, higher courts only look at already in-file evidence.

- There have been enhancements to the accountability mechanisms, but they still don’t do a substantive review of decisions that are made. They mostly look at whether the Board and staff acted in a manner consistent with the Bylaws, mission, etc.

- The Registries filed a statement today, includes comments indicating that they would like to see appeals of substantive decisions, as opposed to appeals through accountability mechanisms. We need to know if the panel adhered to the rules and process, but we also need to know did the panel making the decisions get it right? If they didn't, where can they turn?

- Boards should be making high-level decisions, not making very granular decisions. There should be someone or some group of subject matter experts other than the Board to review decisions. It should also not go to the group/individuals who made the decision in the first place. In reconsiderations, the Board is sometimes reviewing decisions they made in the first place, which is not effective.

Chat excerpt:

Kurt Pritz: @Jeff: That is not my recollection. I remember a webinar where ICANN staff member said that an action by one of the review panel was the same as a staff action for the purposes of Reconsideration Requests and IRP

avri doria: Kurt, that is the way it was treated.

Jeff Neuman: But that does not change the fundamental point that no one reviewed the decisions by the evaluators.

Kurt Pritz: Those Reconsdieration requests were generally lost because the Board Governance Committee found no policy violation (not judging as to whether there was one or not)

- Problem to avoid going forward -- fix what exists, so those in charge of accountability have the tools they need to get the right result.

- Instead of creating another organization at another level that is responsible for this, we can empower the Board to act on in the way they were meant to behalf of the community.

b.  Adequate transparency in new gTLD decision making process, including implementation?

- With regard to conflicts of interest, there needs to be transparency on the front end. On the PICDRP, some questions came up about the panelists and their potential conflicts after the decision was received. There was no way to know who panelists were while going through the PICDRP until the decisions was rendered.

Chat excerpt:

Jamie Baxter | dotgay: Lack of transparency around evaluators used in CPE is also an issue. There is no way to assess any conflict of interest issues.

Cheryl Langdon-Orr (CLO): makes dealing with potential COI. impossibly challenging it seems Karen and Jamie .

Karen Bernstein: I have a problem with the qualifications of arbitrators overseing objections.  Specifically, we had an admiralty lawyer preside over a String Confusion Objection.

Rubens Kuhl: While we look at accountability mechanisms, we need to make sure they are not used, or we try to avoid that, them to be used to delay a contention set.

Kiran Malancharuvil: Of course the problem with limiting areas of expertise is that those who have an expertise in this area are VERY likely to have conflicts of interest

Kristina Rosette (Amazon Registry): There's a difference between requiring experts to have expertise in the DNS and the domain industry, on the one hand, and requiring tht experts have expertise in an area more closely related than admiralty.

Karen Bernstein: Kristina, this particular arbitrator had no experience in trademark or DNS/dn industry

c.  Are there special concerns with respect to conflicts of interest and adequate safeguards for COI in new gTLD program?

- In the context of the independent objector, there needs to be a mechanism through which assertions of conflict of interest can be dealt with in a preliminary matter and separate from a full hearing/consideration by the expert. If you look at the independent objections against the .amazon case, Amazon raised the conflict of interest issue early and often, but was told that there was not mechanism to address, and that it was up to the expert panel to decide whether it would want to address the potential conflict of interest. It shouldn’t be up to expert. Also, you shouldn't put a party in a position to litigate the full objection before you can reach the conflict of interest issue.

Chat excerpt:

Susan Payne: I don't have audio I'm afraid.  I seem to recall the IO, in his own review of his role, raised the issue about having an alternative IO who could act in situations on conflict.  Assuming the IO role is retained that seems a sensible suggestion

- One of the DRPs has a first look process - review to see if they have some merit -- possible to use that on the objections side, limit to conflicts of interest.

- One possibility we considered on an earlier call is to spread first look process across all mechanisms.

Chat excerpt:

Jeff Neuman: I am not sure we can improve the accountability mechanisms as they are pretty well baked right now

Jeff Neuman: but we can focus on new things like a susbstantive appeals process.

Rubens Kuhl: I believe PICDRP has such a first look mechanism.

Cheryl Langdon-Orr (CLO): makes sense if first look s used across and to take in COI issues as consideration.

Rubens Kuhl: Not fine, for sure.

- Does this group agree that this is an area that should be left alone because it is "baked in."

- Some things in the Bylaws are difficult to change, but some enhancements to existing mechanisms or new narrowly focused mechanisms are within reach.

- The Accountability Mechanisms were developed through intensive work over a period of years, but we could recommend new grounds for appeal, intermediate steps in addressing issues.

- Might be helpful to distinguish in deliberations between organization-wide accountability mechanisms and more narrowly tailored mechanisms specific to the New gTLD Program.

 d.  Are there adequate penalties against abuse?

e.  Is there adequate enforcement?

f. Are there specific needs with respect to new gTLDs which make ICANN's basic accountability mechanisms inadequate?

 g. Is there a need for an accountability mechanism specifically focused on new gTLD program?

h. Who should be final adjudicator in such cases?

6.  AOB / Next Meeting (20 June - 15:00 UTC)

- Next week - focus on Dispute Resolution Processes
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