[independent review] [WP2] Independent Review

Tue Mar 17 17:53:56 UTC 2015

I would also strongly prefer:
> “each party bears its own costs” except if the IRP finds the filing “vexatious or frivolous or in bad faith” 

because non-commercial users are never going to be able to pay for ICANN to hire Jones Day to defend its position.  I suspect we aren't the only stakeholders who will never be in a position to pay ICANN's legal costs and thus have access to this accountability mechanism.

Thanks,
Robin

On Mar 17, 2015, at 9:15 AM, Burr, Becky wrote:

> If the panel decides, it has to have a standard for decision making – I.e., one of the two approaches described by Paul below.  I’m slightly more comfortable with the first model, but I understand that many parts of the world do operate on the loser pays model.
> 
> 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
> 
> From: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
> Date: Tuesday, March 17, 2015 at 10:12 AM
> To: 'Mathieu Weill' <mathieu.weill at afnic.fr>
> Cc: "wp2 at icann.org" <wp2 at icann.org>, "wp2-independentreview at icann.org" <wp2-independentreview at icann.org>
> Subject: Re: [independent review] [WP2] Independent Review
> 
> Absolutely possible.  But you still have to have a background rule.  One that says “each party bears its own costs” except if the IRP finds the filing “vexatious or frivolous or in bad faith” is very different from one that say “loser pays for the costs” unless the IRP finds the filing “in good faith or with a substantial colorable basis”
>  
> I have separately prposed to WP2 the first model, which more fits my own preferences – but the second is equally legitimate as a policy choice.
>  
> Paul
>  
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
> <image001.jpg>
>  
> From: Mathieu Weill [mailto:mathieu.weill at afnic.fr] 
> Sent: Tuesday, March 17, 2015 9:54 AM
> To: Paul Rosenzweig
> Cc: Jonathan Zuck; McAuley, David; Grace Abuhamad; wp2-independentreview at icann.org; wp2 at icann.org
> Subject: Re: [independent review] [WP2] Independent Review
>  
> Hi Paul,
>  
> You are right to distinguish cost and price here. ICANN could support most of the cost while the price might be lower than cost. 
>  
> Concerning the alternatives you describe below, could there also be an option for the panel to decide upon who should carry what share of the cost, as part of its decision and based on the merits of the case ? 
>  
> Best,
> 
> Mathieu Weill
> ---------------
> Depuis mon mobile, désolé pour le style
> 
> Le 17 mars 2015 à 14:32, "Paul Rosenzweig" <paul.rosenzweig at redbranchconsulting.com> a écrit :
> 
>> I am not sure I agree that cost is that big an issue.  ICANN has a large surplus right now and makes a handsome “profit” from the sale of domains.  It can fund the bureaucracy quite readily, especially since it will be virtual.  5 salaries for experts; one dedicated staffer to manage the process and lots of computer time.
>>  
>> Much more difficult is permitting ready access to the review process without encouraging frivolous suits.  All systems of law have that problem and we are not going to solve it here since nobody else has ever solved it before.  You can either a) favor access by having no assessment of costs to losers (except in egregious cases); or b) favor dissuading frivolity with a loser pays system … We’ve studied this for years and I can’t think of any other answer.  It’s a fundmentatl policy choice.   Best answer I know is a modest filing fee that is waivable by  the IRP for good cause shown …
>>  
>> P
>>  
>> Paul Rosenzweig
>> paul.rosenzweig at redbranchconsulting.com
>> O: +1 (202) 547-0660
>> M: +1 (202) 329-9650
>> VOIP: +1 (202) 738-1739
>> Skype: paul.rosenzweig1066
>> Link to my PGP Key
>> <image003.jpg>
>>  
>> From: Jonathan Zuck [mailto:JZuck at actonline.org] 
>> Sent: Monday, March 16, 2015 11:29 AM
>> To: McAuley, David; Grace Abuhamad; wp2-independentreview at icann.org; wp2 at icann.org
>> Subject: Re: [WP2] Independent Review
>>  
>> Agree. To me, cost is a more serious issue than Presidential appointment which I believe can be mitigated through term management similar to federal judges.
>>  
>> From:wp2-bounces at icann.org [mailto:wp2-bounces at icann.org] On Behalf Of McAuley, David
>> Sent: Monday, March 16, 2015 9:18 AM
>> To: Grace Abuhamad; wp2-independentreview at icann.org; wp2 at icann.org
>> Subject: Re: [WP2] Independent Review
>>  
>> Thanks Becky for sending the link and thanks as well to David Post, David Maher, Bruce Tonkin, and others who have weighed in on this so thoughtfully. .
>>  
>> Like some, I question the CEO selection provision for the review panel. But the good news, IMO, is that there seems to be widespread support for a review panel mechanism that takes on issues of substance as well as process – although the heavy lifting detail work lies ahead.
>>  
>> One particular detail that we will have to keep in mind is the potential cost of participating in a review panel – the ability to air a complaint within reasonable cost. The forum suggested in the article - made up of five “outstanding legal experts” who have a commensurate salary and office - sounds like an expensive bureaucracy in the formation stage and we need to be careful here.
>>  
>> And along with cost, we should also pay careful attention to limitations - disincentives to frivolous or inconsequential claims – a delicate balance to be struck. 
>>  
>> David McAuley
>>  
>> From:wp2-independentreview-bounces at icann.org [mailto:wp2-independentreview-bounces at icann.org] On Behalf Of Grace Abuhamad
>> Sent: Saturday, March 14, 2015 12:28 AM
>> To: wp2-independentreview 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
>> _______________________________________________
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>> wp2-independentreview at icann.org
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