[independent review] [WP2] Independent Review

[Malcolm Hutty]

On 17/04/2015 21:24, Robin Gross wrote:
> Thanks, Becky, for this great work!  I've got a few comments on
> this morning's draft document.
> 
> We may want to explicitly expand the scope of what issues are
> reviewable beyond only concerns of "mission creep" and include also
> issues where the board/staff has violated established ICANN
> policies.

+1


> I very much like David's suggestion that we tie IRP reform to DIDP
> and the need to get access to documents.  I want to add this DIDP
> suggestion into the template for reconsideration request reform
> also.

+1


> I also support the suggestion that IRP ruling be not an 
> always-automatically-the-law-of-the-land and we need some kind of
> "fail safe" to protect us in case the IRP got it wrong.  Possibly a
> final check by the community combined with a board decision might
> be an appropriate time to trump a ruling of the IRP panel?  In any
> event, a "fail safe" needs discussion and to be thought through
> more by the community.

There needs to be a final decisionmaker somewhere. I strongly disagree
with any suggestion that that should lie with the Board, even
following some further community process.

If you're worried that the IRP might simply "get it wrong", then
create a normal appeals process. A single-person or three-person IRP
panel being subject to appeal to a "full court" three-person or
seven-person panel is perfectly commonplace for judicial systems,
although we'd then also need means for deciding when leave to appeal
should be granted or withheld.

Previously some people objected to an appeals process as
overengineering the solution. But it seems to me the proper solution
to your concern. It would also help with the question of how to create
a body of precedent, while avoiding having one unfortunate ruling
create deeply embedded problems.

Allowing the Board the ultimate power to decide that, in their
opinion, the IRP simply "got it wrong" would in my view fatally
undermine the whole exercise. I'm not much more enamoured of resting
on a community process either, even if it could be divorced from Board
control: the complaint to the IRP may very well be against something
solidly backed by the community, but still inconsistent with scope or
bylaws commitments.



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            Malcolm Hutty | tel: +44 20 7645 3523
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