[IOT] Next meeting and comments on draft EoI

[McAuley, David]

Dear members of the IRP IOT,



Our next call is Wednesday April 19th (next week) at 13:00 UTC.



Under my sign-off below are my comment to Sam Eisner and Liz Le of ICANN legal regarding the draft Expression of Interest. Would any IOT participant wishing to comment on the draft EOI please do so on list by Wednesday, April 12th.



Thanks, David



David McAuley

International Policy Manager

Verisign Inc.

703-948-4154



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Hi Sam and Liz,



Thank you for the draft EOI.



In addition to my comments on the call, here are some comments on the draft made in my capacity as a participant in the IRP IOT:



As to the question on staggered terms for panelists (footnote 3 of draft), my personal opinion is that this is a good idea, as is reasonable division at three-year and five-year initial terms if we are able to do this.



I suggest the first sentence of the first paragraph be made into two sentences (incorporating footnote 2) as follows:



“The Internet Corporation for Assigned Names and Numbers (ICANN),[1] maintains an Independent Review Process (IRP) as a procedure for independent third-party review of ICANN actions and/or inactions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws. The IRP is established at Article 4<https://www.icann.org/resources/pages/governance/bylaws-en/#article4>, Section 4.3 of the ICANN Bylaws, with qualifications for standing panelists described at Section 4.3(j) and the independence required of standing panelists described at Section 4.3(q). The IRP is intended to ensure ….”



With respect to headings like “the panelists shall”, “Required or Highly Preferred Skills”, and “Required or Highly Preferred Experience”, these seem problematic. My suggestion would be to list anything in the nature of a requirement separately and track those against Sections 4.3(j) and 4.3(q). Maybe something like this:



“Required Expertise:”



••••••••• Panelists shall possess significant relevant legal expertise in one or more of the following areas:



o   International law;



o   Corporate governance;



o   Judicial systems;



o   Alternative dispute resolution and/or arbitration.

“Required Knowledge/Commitment to Learn:”



••••••••• Panelists shall have, or develop over time, knowledge regarding the DNS and ICANN's Mission, work, policies, practices, and procedures. (Members of the Standing Panel shall receive at a minimum, training provided by ICANN on the workings and management of the Internet's unique identifiers and other appropriate training as recommended by the IRP Implementation Oversight Team.)

“Required Independence:”



••••••••• Panelists must be independent of ICANN and its Supporting Organizations and Advisory Committees as follows:



o   Upon consideration for the Standing Panel and on an ongoing basis, Panelists shall have an affirmative obligation to disclose any material relationship with ICANN, a Supporting Organization, an Advisory Committee, or any other participant in an IRP proceeding.



o   In addition, prospective applicants should understand that the IRP the Implementation Oversight Team may develop additional independence requirements, including term limits and restrictions on post-term appointment to other ICANN positions. Panelists will be informed of any such additional requirement(s) prior to entering into service on the standing panel.

Then, following these sections there may be reason to include the other qualifications you mention under a heading like this:



“Preferred Skills and Experience:”



••••••••• The ICANN staff will work with Supporting Organizations, Advisory Committees, and the ICANN Board to conduct an initial review and vetting of applications. Following that, the Supporting Organizations and Advisory Committees will nominate a slate of proposed standing panel members from the well-qualified candidates so identified. Final selection shall be subject to Board confirmation, which shall not be unreasonably withheld. Throughout these processes, it is probable that insights into a candidate’s qualifications vis-à-vis the following skills and experiences will be helpful and thus candidates are invited to comment on these:



o   [here add the items as you set them out in your draft – although for “knowledge of common law and civil law systems” (my emphasis) I would suggest “knowledge of common law or civil law systems.”]

Instead of saying “Fluency in English and knowledge of one other major language” my suggestion would be “Fluency in English is required; ability in another major language is desirable.” Will be interesting to see others views on this.



The draft also says this:

“The panelists will be required to agree contractually to perform services in a first-­‐rate manner.” Can you give us more detail about the envisioned contract – with whom? Enforced by whom? With what remedy(ies)? I am assuming with the administrator but would like further information about this so we can properly consider it.



Thanks and,



Best regards,



David




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