[GTLD-WG] [CPWG] [registration-issues-wg] Subsequent Procedures: ALAC's right and ability to file Objections to applications/applicants in new round, and Appeals against any decision not in favour of ALAC

Marita Moll mmoll at ca.inter.net
Fri Oct 11 07:37:33 UTC 2019


Hi Justine. I am in total agreement with your draft position. Your 
excellent work on this difficult file is much appreciated.

Marita

On 10/11/2019 5:15 AM, Justine Chew wrote:
> Thank you very much, Carlton, for your comments.
>
> Might others in CPWG have input on this issue? In any case, the plan 
> is to take this up again at next week's CPWG call to form a concrete 
> response (if any)
>
> (Apologies for cross-posting)
>
> Thanks,
> Justine
> -----
>
>
> On Thu, 10 Oct 2019 at 22:35, Carlton Samuels 
> <carlton.samuels at gmail.com <mailto:carlton.samuels at gmail.com>> wrote:
>
>     Thanks Justine. Another yeoman's task accomplished with aplomb!
>
>     In my view the right to file objections is established and the
>     right to file appeals in those cases simply affirms the course of
>     natural justice and thusly, should too be established.  In similar
>     vein, a right to file an appeal on an evaluation decision
>     pertaining community-type applications for any ASP booted in the
>     coming round would be in the At-Large's interest.
>
>     That the caviling will coalesce around money is inevitable. I
>     certainly think that if these were to be privileged via the SubPro
>     WG recommendations, then the WG ought to follow the lines of the
>     CCT RT Recommendation #35 and referenced broadly on
>     Byelaw-mandated responsibilities rather than specifying AC's.
>
>     -Carlton
>
>     ==============================
>     /Carlton A Samuels/
>     /Mobile: 876-818-1799
>     Strategy, Process, Governance, Assessment & Turnaround/
>     =============================
>
>
>     On Thu, Oct 10, 2019 at 6:38 AM Justine Chew
>     <justine.chew at gmail.com <mailto:justine.chew at gmail.com>> wrote:
>
>         Just to provide further context,
>
>         When we speak of "Accountability Mechanism" in SubPro, we are
>         referring to appeals mechanism essentially, and the idea of
>         recommending the establishment of a new appeals
>         mechanism/layer, which would apply strictly to any upcoming
>         New gTLD Program round. Not to be confused with the existing
>         Accountability Mechanism under the ICANN Bylaws, yet
>         considering whether mechanisms like Request for
>         Reconsideration and Independent Review Panels would be
>         applicable to decisions arising under the Program and under
>         what circumstances those would or would not be applicable.
>
>         I would prefer to keep the question of whether a new appeals
>         mechanism is desirable or not independent to the question of
>         ALAC's right to file Objections and Appeals. The Objections
>         mechanism is still going to be outsourced to third-party
>         Dispute Resolution Service Providers (DRSP) for the new round
>         because of reliance on their expertise, while the right to
>         appeal will be likely involve such DRSP anyway.
>
>         *Now, addressing strictly what applies to ALAC/At-Large in
>         respect of _Objections_*,
>
>         1. In the 2012 round, there effectively wasn't any
>         _substantive_ appeal mechanism available to ALAC (or any
>         objector or applicant, for that matter) to appeal against an
>         unfavourable decision by a third-party Objection DRSP.  Under
>         the 2012 AGB, ALAC was able to file Limited Public Interest
>         Objections or Community Objections with funding provided by
>         ICANN, and as pointed out by Alan, Olivier and Cheryl at the
>         CPWG call of 9 Oct, ALAC filed 3 objections with respect to
>         the .health string.
>
>         2. In the SubPro Initial Report of 3 July 2018, a question was
>         posed to the community.
>
>             /"/Q. 2.8.1.e.10 /ICANN agreed to fund any objections
>             filed by the ALAC in the 2012 round. Should this continue
>             to be the case moving forward? Please explain. If this
>             does continue, should any limits be placed on such
>             funding, and if so what limits? Should ICANN continue to
>             fund the ALAC or any party to file objections on behalf of
>             others?"/
>
>
>         In response, vide its Statement of 3 October 2018 (see:
>         https://community.icann.org/pages/viewpage.action?pageId=88573813),
>         ALAC said,
>
>             /"Yes, the ALAC believes strongly that ICANN should
>             continue to fund all objections filed by us in the future
>             rounds. As ICANN’s primary organisational constituency for
>             the voice and concerns of the individual Internet user,
>             the ALAC bears a responsibility as an established
>             institution to pursue Limited Public Interest and/or
>             Community objections against applications for New gTLDs
>             which it believes does not benefit individual Internet end
>             users as a whole./
>             /
>             /
>             /The existing limits or conditions placed on funding for
>             ALAC objection filing and Dispute Resolution Procedure
>             (DRP) costs already form an arduous “stress test” to not
>             only establish the validity of a contemplated Community
>             objection, but also support for it within At-Large./
>             /
>             /
>             /However, for ALAC objections to have proper effect as
>             intended in the AGB, the ALAC proposes that guidance for
>             DRSP panellists be substantial in respect of adopting
>             definitions of terms – such as “community” and “public
>             interest” – as well as questions on objector standing, in
>             an effort to limit the ‘damage’ resulting from panellists’
>             unfamiliarity with the ICANN Community structure,
>             divergent panellists’ views, even values, on the same, and
>             which conflict with the goals stated in ICANN’s Bylaws or
>             GNSO consensus policy."/
>
>
>         3. In the SubPro PDP WG deliberations of all public comments
>         received to the said Initial Report, questions again arose as
>         to whether ALAC should continue to fund objections to be filed
>         by ALAC in subsequent procedure, and if yes, to what extent.
>         This is because there were public comments which basically
>         questioned why ALAC should have "special rights" (standing
>         versus funding) to file objections.
>
>         In my opinion, *the question of ALAC's standing should not be
>         considered in SubPro deliberations* -- that is a question for
>         ALAC itself (considered through ALAC's INTERNAL process for
>         determining whether an objection should be filed) and a
>         question for the Objection DRSP (it has been the ground of
>         dismissal for ALAC's prior objections ie "ALAC having no
>         standing to object").
>
>         *_On the question of funding, we now have a choice whether to
>         reinforce the ALAC statement (as presented above) or consider
>         recanting ie giving up the fight to keep the right to file
>         objections in new rounds_*.
>         _
>         _
>         *And addressing strictly what applies to ALAC/At-Large in
>         respect of Appeals*,
>         4. In the SubPro PDP WG deliberations a consequent question
>         was raised in mooting the recommendation for a new appeals
>         mechanism -- if ICANN were to fund objections to be filed by
>         ALAC in the new round, should ICANN also fund the costs of
>         appeals to be filed by ALAC against any decision rendered that
>         was unfavourable to ALAC (on a loser-pay model)?
>
>         5. This is where the discussion in the CPWG call of 9 Oct has
>         progressed to.  I noted that there is support for the
>         retention of right to file objections which ought be
>         accompanied by the right to file appeals. Therefore, a draft
>         position was presented and which I have now refined for
>         feedback / further refinement ...
>
>         *The ALAC has no funding ability beyond that supplied by
>         ICANN. It is not feasible for ALAC to raise funds to finance
>         an appeal(or objection) or to bear costs if its appeal is
>         unsuccessful. Any withholding of ICANN funding for ALAC to
>         file objections and/or appeals would be tantamount to denying
>         ALAC the ability to fulfill its duty under the Bylaws as
>         the**primary organisational constituency for the voice and
>         concerns of the individual Internet user. **As to quantumfor
>         or limitsto such ICANN funding in light of ICANN budgetary
>         constraints, ALAC believes that it must commensurate with
>         number of applicationsreceived.*
>
>         6. An aside note -- the notion of appeals would also be
>         available to appeal against _evaluation_ decisions, such as
>         the ones made by panels for the Applicant Support Program and
>         CPE.
>
>         Apologies for the long email and thank you for your attention.
>
>         Justine
>         -----
>
>
>         On Thu, 10 Oct 2019 at 00:11, Alan Greenberg
>         <alan.greenberg at mcgill.ca <mailto:alan.greenberg at mcgill.ca>>
>         wrote:
>
>             I would like to raise the issue of the ALAC ability to
>             object to applications as well as its ability to appeal
>             such judgements.
>
>             In the last round, the ALAC filed three objections with
>             one of them later being withdrawn. All were to _.health_.
>
>             _I believe that the ALAC needs to formally determine if it
>             wants such objection rights in future gTLD rounds_. If we
>             do want that right, I believe that we also need the right
>             to appeal and in both cases, if we are not funded by
>             ICANN, then the right is meaningless.
>
>             I do not have copies of the objections we filed, but for
>             the two cases where there were judgements (against us),
>             they can be found at:
>
>             https://newgtlds.icann.org/sites/default/files/drsp/17jan14/determination-1-1-1489-82287-en.pdf
>             ;
>             https://newgtlds.icann.org/sites/default/files/drsp/17jan14/determination-1-1-1684-6394-en.pdf
>             .
>
>             I believe that the ALAC decsiion should be based on the
>             past history and on whether we truly believe that we will
>             allocate appropriate resources to such a future action.
>
>             In aid of that, I suggest the CPWG, and more importantly
>             the ALAC, be quickly briefed by Olivier (who as ALAC Chair
>             was the point person in the earlier objections) on the
>             history and efforts associated with the three .health
>             objections.
>
>             I may be on today's call but if so, only for part of it.
>
>             Alan
>
>             At 06/10/2019 11:00 AM, Justine Chew wrote:
>>             Dear all,
>>
>>             Reference is made to the *SubPro Updates workspace*
>>             <https://community.icann.org/x/6a_jBg>.
>>
>>             The Subsequent Procedures PDP WG has started deliberating
>>             on public comments received on the topic of
>>             Accountability Mechanism on 1 Oct 2019. Deliberations
>>             will continue on its next call on 7 Oct at 15:00 UTC.
>>
>>             Here is an *update on the topic of Accountability
>>             Mechanism as at 5 Oct 2019*
>>             <https://community.icann.org/download/attachments/111390697/01.%20SubPro%20Accountability%20Mechanism%20%5BAppeals%5D%20as%20at%205.10.2019%20for%20CPWG.pdf?version=1&modificationDate=1570370108344&api=v2>.
>>
>>
>>             Please note that while "Accountability Mechanism" is
>>             better associated with mechanism per the Bylaws, namely
>>             Request for Reconsideration, Independent Review Process
>>             and ICANN Ombudsman, within the SubPro context,
>>             "Accountability Mechanism" is about appeals for the new
>>             gTLD Program --  looking at rights and forms of appeals
>>             to decisions made during evaluation, objections, either
>>             by ICANN Org/Board, external evaluators, external third
>>             party Dispute Resolution Service Providers (DRSPs), as
>>             well as in respect of post-delegation dispute resolution
>>             procedures.
>>
>>             CCT Recommendation #35 is picked up under this topic,
>>             specifically sub-recommendation (3) "/Introducing a post
>>             dispute resolution panel review mechanism/".
>>
>>             As I alluded to at the CPWG call of 26 Sep under the
>>             topic of Objections, there were public comments which
>>             suggested that ALAC's ability to file Objections in
>>             subsequent procedures be explicitly limited on account of
>>             budgetary constraint.
>>
>>             Along the same lines, a question was raised during the
>>             last SubPro WG call as to whether AC's should be funded
>>             by ICANN to file appeals. This is something which may
>>             require addressing either through a position relayed to
>>             SubPro WG momentarily and/or in any statement in response
>>             to the call for public comments to SubPro WG's final
>>             report in due course.
>>
>>             On that note, I wish you a pleasant week ahead.
>>
>>             Justine Chew
>>             -----
>>
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