[WP2] this is the document we'll use for our discussion of the IRP
Greg Shatan
gregshatanipc at gmail.com
Wed Jul 22 15:23:06 UTC 2015
David, I think your first issue is more semantic than substantive.
Unfortunately, the word "panel" can be used here in two different ways.
One is "the list of all people accredited and available to participate in
an arbitral process" (a/k/a the "pool" or the "standing panel"). The other
is "the subgroup of people in a pool chosen to sit and hear a particular
case." (a/k/a the "sitting panel"). We should probably use the word to
mean one or the other but not both.
I think we have always contemplated that a "sitting panel" would be 1 or 3
people. This was never intended to be a "Review Board" or to have a single
"voice."
This is intended to revise the current IRP process, and not invent a whole
new process. It's instructive to look at the the current language in the
bylaws, which states in Article IV, Section 3(6):
There shall be an omnibus standing panel of between six and nine members
with a variety of expertise, including jurisprudence, judicial experience,
alternative dispute resolution and knowledge of ICANN's mission and work
from which each specific IRP Panel shall be selected. The panelists shall
serve for terms that are staggered to allow for continued review of the
size of the panel and the range of expertise. A Chair of the standing panel
shall be appointed for a term not to exceed three years. Individuals
holding an official position or office within the ICANNstructure are not
eligible to serve on the standing panel. In the event that an omnibus
standing panel: (i) is not in place when an IRP Panel must be convened for
a given proceeding, the IRP proceeding will be considered by a one- or
three-member panel comprised in accordance with the rules of the IRP
Provider; or (ii) is in place but does not have the requisite diversity of
skill and experience needed for a particular proceeding, the IRP Provider
shall identify one or more panelists, as required, from outside the omnibus
standing panel to augment the panel members for that proceeding.
and in Section 3(10):
Either party may request that the IRP be considered by a one- or
three-member panel; the Chair of the standing panel shall make the final
determination of the size of each IRP panel, taking into account the wishes
of the parties and the complexity of the issues presented.
I hope that clears up your first issue.
As to the second issue, I think it points out a bigger problem -- 7
potential panelists is almost certainly too small a pool for the IRP.
Currently, the pool is 6-9 members (as seen above). With 7 members in the
pool, if two sitting panels of three members are assembled, we have hit
capacity unless members are willing and able to serve on more than one
sitting panel simultaneously. It should probably be at least 9, if not
more, so that recourse to the "free agent pool" is not necessary under any
reasonably foreseeable circumstances.
We do have a provision for an appeal to the full standing panel (like an *en
banc* review). If the full standing panel is too big that may create
issues. There may also be capacity issues if panelists don't have the
bandwidth to handle both an appeal panel and a regular sitting panel.
On Wed, Jul 22, 2015 at 10:16 AM, Malcolm Hutty <malcolm at linx.net> wrote:
> I think we are taking a big risk if we assume that whatever we decide
> here, in this highly compressed timescale, will be right first time.
> Instead, we need something simple initially, and the power to correct
> ourselves later.
>
> In the bylaws I think we should simply say that ICANN has a duty to
> provide sufficient IRP panelists to implement the IRP and effectively
> carry out its cases according to its rules of procedure.
>
> And then we write the following self-modifying ruleset into the bylaws:
>
> - the IRP to have the power to create its own rules of procedure subject
> to the bylaws;
>
> - the CCWG be empowered to propose "rules and programmes for the purpose
> of ensuring that the IRP is a fair and accessible form of independent
> review capable of holding ICANN to compliance with its bylaws for the
> benefit of the community as a whole".
>
> - any rules or programmes proposed by the CCWG shall only take effect
> with the consent of the Board, such consent not to be unreasonably withheld
>
> - rules of procedure adopted as a result of this process shall take
> precedence over any rules of procedure developed by the IRP itself
>
> - any rules developed as a result of this process shall, once adopted by
> the Board, take effect as secondary bylaws of the corporation, inferior
> to the bylaws in terms of precedence in case of conflict with the
> bylaws, but otherwise with the same effect as bylaws.
>
>
>
> Examples of the "rules and programmes" we might later develop could
> include rules for document disclosure in an IRP, principles for the
> determination that a claim is vexatious or frivolous, rules for the
> publication of decisions, and potentially programmes to subsidise the
> bringing of an IRP case by impecunious parties with meritiorious claims.
>
> Then we can leave how many people on an initial panel, how many on an
> appeal panel, what principles are to be applied for giving leave to
> appeal, and so forth later, to be dealt with as a WS2-type issue through
> this power to create "rules and programmes" for the abovementioned purpose.
>
>
> Regards,
>
> Malcolm.
>
>
> On 22/07/2015 14:09, David Post wrote:
> >
> >
> > I continue to think that it is a bad idea to have this body meet in
> > panels of 3, rather than having the full 7-member Review Board hear all
> > claims. The institution needs the opportunity to meet and deliberate
> > together as a single body if it is to develop the kind of institutional
> > weight that it should have (and probably has to have) if it is to serve
> > as an effective check on the Board. Splitting it up this way just
> > dilutes its voice.
> >
> > And I'm not clear what "Process for selection from pre-vetted pool to
> > respond to capacity issues – all panels will be chaired by a member of
> > the standing panel " means, exactly. Is this a proposal to allow
> > members of some "standby" pool to hear claims if there are "capacity
> > issues" with the 7-member Review Board? If so, I think that's also not
> > a very good idea, for many of the same reasons as the above. I don't
> > think it's a good idea to give the power to invalidate Board action to
> > some "standby" arbitrator, who may (or may not) have ever dealt with a
> > DNS-related claim before, and who may never do so again, but who is
> > called into duty on a one-off basis. I think that setting it up this
> > way seriously detracts from the seriousness and importance of the
> > undertaking.
> >
> > David
> >
> > At 06:43 AM 7/22/2015, Burr, Becky wrote:
> >
> >> 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 <mailto:becky.burr at neustar.biz> /
> >> www.neustar.biz <http://www.neustar.biz/>
> >> Content-Type:
> >> application/vnd.openxmlformats-officedocument.wordprocessingml.document;
> >> name="Constitutional Court charged with determining whether
> >> ICANN has"
> >> acted.docx"
> >> Content-Description: Constitutional Court charged with determining
> whether
> >> ICANN has acted.docx
> >> Content-Disposition: attachment; filename="Constitutional Court
> >> charged with"
> >> determining whether ICANN has acted.docx"; size=109908;
> >> creation-date="Wed, 22 Jul 2015 10:43:20 GMT";
> >> modification-date="Wed, 22 Jul 2015 10:43:20 GMT"
> >> Content-ID: <51A35160F2A36C429B7F31CDD2DE998F at neustar.biz>
> >>
> >> _______________________________________________
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> >
> > *******************************
> > David G Post - Senior Fellow, Open Technology Institute/New America
> > Foundation
> > blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
> > book (Jefferson's Moose) http://tinyurl.com/c327w2n
> > <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>
> > music http://tinyurl.com/davidpostmusic
> > <http://tinyurl.com/davidpostmusic%A0> publications etc.
> > http://www.davidpost.com <http://www.davidpost.com />
> > *******************************
> >
> >
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>
> --
> Malcolm Hutty | tel: +44 20 7645 3523
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