[WP2] this is the document we'll use for our discussion of the IRP
David Post
david.g.post at gmail.com
Wed Jul 22 15:34:19 UTC 2015
This seems reasonable - but you omitted (inadvertently I suspect) the
important requirement that the Bylaws need to say at the outset (in a
Fundamental Bylaw) that the board also has a duty to comply with IRP
decisions.
David
On Wednesday, July 22, 2015, 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 <javascript:;> <mailto:becky.burr at neustar.biz
> <javascript:;>> /
> >> 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
> <javascript:;>>
> >>
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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
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> > music http://tinyurl.com/davidpostmusic
> > <http://tinyurl.com/davidpostmusic%A0> publications etc.
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> > *******************************
> >
> >
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>
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