[WP2] this is the document we'll use for our discussion of the IRP

Wed Jul 22 15:28:57 UTC 2015

Malcolm,

I think the level of detail we have should mirror the level of detail in
the current bylaws section on the IRP (Article IX, Section 3), unless there
are strong reasons to do otherwise.  We are essentially revising the
current bylaws, not creating new text from whole cloth.  I would not be in
favor of providing significantly *less* detail in the revised bylaws as
compared to the current bylaws.  We may want to provide additional guidance
for the implementation of these bylaws, but this guidance need not and
should not appear in the bylaws themselves.

Perhaps we need to be more careful to keep current bylaws provisions in
front of us when we are discussing their revised versions.

Greg

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
>    Head of Public Affairs | Read the LINX Public Affairs blog
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