[independent review] FW: Independent Review

Sun Mar 15 20:49:24 UTC 2015

All,
I would like to echo Mathieu's suggestion to give it a try through our template. 

The idea to have sort of a constitutional court only dealing with breaches of the "compact" is great. 

You might remember that we have often discussed the analogy of a state in ICANN and the need to separate powers. I guess that the analogy to a state makes the accountability architecture very easy to understand and compelling since states are using such models for "ages". 

Supporting this with the compact/constitution and having a judiciary/constitutional court sounds promising. 

We might even contemplate having the constitutional court with very limited powers and independent review for other matters in addition to that.

Thomas

-  

---
rickert.net

> Am 15.03.2015 um 14:09 schrieb Mathieu Weill <mathieu.weill at afnic.fr>:
> 
> Dear Becky,
> 
> The paper is extremely interesting, and echoes many of our discussions within the CCWG. I think it would be worth circulating and adding to the "documentation" section of our wiki for future reference. 
> 
> regarding the "constitutional court", I would suggest we give it a try through our agreed template to see how it would look like. I find the idea very promising. 
> 
> I wonder whether I'd be comfortable with setting the appointment of members in the hands of the President and CEO in the case of Icann, since he (or she) is not elected or appointed by the community. But I think the "confirmation" procedure would be very useful. 
> 
> Best
> Mathieu
> 
> Le 14/03/2015 17:56, Robin Gross a écrit :
>> Interesting paper that could provide a basic framework for much of our work or at least some possible constructions to consider applying.  Thanks for forwarding it!
>> 
>> Best,
>> Robin
>> 
>>> On Mar 14, 2015, at 9:21 AM, David W. Maher wrote:
>>> 
>>> Becky:
>>> I agree with most of the approach in the Weber/Gunnarson article. In particular, I agree that their conception of a constitution closely parallels our Mission Statement and Core Values. Would the proposed constitution be an amendment to the ICANN charter?
>>> 2 further thoughts:
>>> I am not convinced that a new Review Panel is necessarily better than a strengthening of the existing IRP, so that its mission is broader than that provided by the current bylaws, and its decisions are binding.
>>> It is not clear how the proposed members of the corporation would be selected; the idea is a good one, but the selection process would be full of complex political issues.
>>> David 
>>> David W. Maher
>>> Senior Vice President – Law & Policy
>>> Public Interest Registry
>>> 312 375 4849 
>>> 
>>> 
>>> From: Grace Abuhamad <grace.abuhamad at icann.org>
>>> Date: Friday, March 13, 2015 10:27 PM
>>> To: "wp2-independentreview at icann.org" <wp2-independentreview at icann.org>, "wp2 at icann.org" <wp2 at icann.org>
>>> Subject: [independent review] FW: Independent Review
>>> 
>>> Dear all, 
>>> Becky's email was sent to the bounce list, so I'm resending on her behalf. 
>>> --Grace
>>> 
>>> -----
>>> 
>>> http://stlr.org/download/volumes/volume14/WeberGunnarson.pdf
>>> 
>>> I’ve provided a link, above, to an article written by Rolf Weber and Shawn Gunnarson in 2012 entitled “A Constitutional Solution for Internet Governance.”  The authors call for the following reforms for ICANN:
>>> 
>>> A written charter:  A charter or constitution that restricts ICANN to actions that the community has already                               approved, distributes authority through law and requires it to be exercised through or under law; separates power appropriately; enumerates and constrains ICANN’s powers; and establishes fundamental rights for those governed by ICANN – this corresponds, I think, to the Mission Statement and Core Values [Compact/Commitment, whatever] that we are working on.  
>>> Establish an independent constitutional court (the authors call it a Review Panel) with narrow powers to review ICANN actions and to reverse those actions if they are inconsistent with the written charter.  The authors propose that the panel consist of 5 highly regarded legal experts who:
>>>  Have no relationship with ICANN that creates a conflict of interest
>>> Serve for a fixed term that cannot be shortened absent agreement by the community that the position is being used for personal gain
>>> Receive a guaranteed salary that cannot be reduced during the term.
>>> With respect to selecting the members of the independent judiciary, they propose that the CEO would appoint the members subject to  approval by ICANN’s “members.”  This is similar to the way Supreme Court justices are selected in the US (nominated by the president and confirmed by the Senate) and I suspect in may other countries as well.
>>> 
>>> Questions – 
>>> 
>>> What do you think of this approach?
>>> Would/should a “constitutional court” of this type need to be in addition to a reformed independent review process conducted by arbitrators drawn from a standing panel?  
>>> What credentials would the panelists need to have to be appointed?
>>> Should there be some sort of process for vetting nominees?  For example, the American Bar Association has a standing panel that reviews and rates judicial nominees.  http://www.americanbar.org/groups/committees/federal_judiciary.html
>>> Anything else?
>>> 
>>> 
>>> 
>>> J. Beckwith Burr
>>> Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
>>> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>>> Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz / www.neustar.biz
>>> _______________________________________________
>>> wp2-independentreview mailing list
>>> wp2-independentreview at icann.org
>>> https://mm.icann.org/mailman/listinfo/wp2-independentreview
>> 
>> 
>> 
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> 
> -- 
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06
> mathieu.weill at afnic.fr
> Twitter : @mathieuweill
> *****************************
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