[GTLD-WG] [CPWG] Subsequent Procedures Update: Accountability Mechanism, updated snapshot as at 22 Oct 2019

Justine Chew justine.chew at gmail.com
Tue Oct 22 05:55:43 UTC 2019


Dear all,

Reference is made to the *SubPro Updates workspace
<https://community.icann.org/x/6a_jBg>*.

Thanks, Greg, for your correction. I also note an earlier comment of
support from Carlton Samuels.

I have today relayed the settled response to the Subsequent Procedures PDP
WG.

I also realised that I had inadvertently omitted inclusion of the
table/matrix for Appeals against decisions re Objections in my presentation
last week.  Thus to rectify the omission and to provide for the relayed
response, here is an *updated snapshot on the topic of Accountability
Mechanisms (Appeals) as at 22 Oct 2019
<https://community.icann.org/pages/viewpage.action?pageId=111390697&preview=/111390697/120817333/03.%20SubPro%20Accountability%20Mechanism%20%5BAppeals%5D%20as%20at%2022.10.2019%20for%20CPWG.pdf>
(slides
11-14 added)*.

Cheers,
Justine
-----


On Mon, 21 Oct 2019 at 10:30, Greg Shatan <greg at isoc-ny.org> wrote:

> Justine and all,
>
> I just see a missing word "be" in the third sentence, which I've now put
> in. Otherwise, this looks good to me.
>
>
> “The ALAC has no funding ability beyond that supplied by ICANN. It is not
> feasible for the ALAC to raise funds to finance an appeal (or objection) or
> to bear costs *under a “loser pays” model* if its appeal is unsuccessful.
>
> Any withholding of ICANN funding for the 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 any contemplated limits to the number of appeals or quantum of ICANN
> funding to ALAC in light of ICANN budgetary constraints, the ALAC believes
> that its ICANN funding must *be* commensurate with number of applications
> received.
>
> *The question of standing for the ALAC to file an objection and appeal is
> beyond the scope of the Subsequent Procedures PDP WG. It is a question for
> the ALAC to consider and the Dispute Resolution Service Provider and
> Appeals Arbiter to determine in respect of an objection and appeal,
> respectively*.”
>
> Greg
>
> Greg Shatan
> greg at isoc-ny.org
> President, ISOC-NY
> *"The Internet is for everyone"*
>
>
> On Thu, Oct 17, 2019 at 6:35 AM Justine Chew <justine.chew at gmail.com>
> wrote:
>
>> *Please provide further input (if any) by 21 October 12:00 UTC.*
>>
>> Dear CPWG colleagues,
>>
>> At yesterday's CPWG call, it was decided that a final call for feedback
>> be made to this list on the proposed response to SubPro PDP WG on the
>> question of
>> *"Should ALAC have standing and funding to file an appeal (in Subsequent
>> Procedures)?"*
>> Further to the email trail below, I presented a revised proposed response
>> at the said CPWG call to address 2 additional points which were mentioned
>> in my explanatory email below - i.e. (1) reference to the contemplated
>> "loser pays" model and (2) standing to file.
>> Ref: Slide deck for Agenda item 7, 1st bullet at
>> https://community.icann.org/x/F4AzBw
>> <https://www.google.com/url?q=https://community.icann.org/x/F4AzBw&sa=D&usd=2&usg=AOvVaw3udIDoZJawofJ-_Ypw-7E_>
>>
>>
>> So, the proposed response now reads (key amendments underlined),
>>
>> “The ALAC has no funding ability beyond that supplied by ICANN. It is not
>> feasible for the ALAC to raise funds to finance an appeal (or objection) or
>> to bear costs *under a “loser pays” model* if its appeal is unsuccessful.
>>
>> Any withholding of ICANN funding for the 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 any contemplated limits to the number of appeals or quantum of
>> ICANN funding to ALAC in light of ICANN budgetary constraints, the ALAC
>> believes that its ICANN funding must commensurate with number of
>> applications received.
>>
>> *The question of standing for the ALAC to file an objection and appeal is
>> beyond the scope of the Subsequent Procedures PDP WG. It is a question for
>> the ALAC to consider and the Dispute Resolution Service Provider and
>> Appeals Arbiter to determine in respect of an objection and appeal,
>> respectively*.”
>>
>>
>> If you have any (further) input to the draft above, please provide the
>> same by 21 October 12:00 UTC.
>>
>> After that, I will finalize the response (if necessary) and relay the
>> same to SubPro PDP WG for their attention.
>>
>> (I have noted earlier comments of support from Marita Moll, Evan
>> Leibovitch and Maureen Hilyard in a separate thread; and my apologies for
>> cross-posting)
>>
>> Thank you,
>>
>> Justine Chew
>> -----
>>
>>
>> On Sat, 12 Oct 2019 at 04:57, Jonathan Zuck <JZuck at innovatorsnetwork.org>
>> wrote:
>>
>>> Agree
>>>
>>> Jonathan Zuck
>>> Executive Director
>>> Innovators Network Foundation
>>> www.Innovatorsnetwork.org
>>> ------------------------------
>>> *From:* GTLD-WG <gtld-wg-bounces at atlarge-lists.icann.org> on behalf of
>>> Justine Chew <justine.chew at gmail.com>
>>> *Sent:* Wednesday, October 9, 2019 5:07:44 PM
>>> *To:* CPWG <cpwg at icann.org>
>>> *Subject:* [GTLD-WG] [CPWG] 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
>>>
>>> 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 ICANN
>>> *[sic]* 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 quantum for or limits to such ICANN funding in
>>> light of ICANN budgetary constraints, ALAC believes that it must
>>> commensurate with number of applications received.*
>>>
>>> 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>
>>> 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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>>>
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