[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 22:41:15 UTC 2015
Greg
I appreciate your response to my earlier
message. I guess that I would have thought that
more than just "revising" the current process is
called for if the IRP is actually going to serve
as a real counterweight to the Board - something
more like the "overhaul" of the process that the
Draft Proposal spoke of. I suppose it depends on
whether one thinks that the existing IRP has
successfully functioned to keep ICANN within its
narrow limits or not. I don't think it has been
very successful at all - in significant part
because of the way it was structured in the very
Bylaw provisions you quote below.
David
At 11:23 AM 7/22/2015, Greg Shatan wrote:
>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. Â
>
>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."Â
>
>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
><<mailto:malcolm at linx.net>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 mmember 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
> >>
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> >> Content-Type:
> >> application/vnd.openxmlformats-officedocument.wordprocessingml.document;
> >>Â Â Â Â Â name="Constitutional Court charged with determining whether
> >> ICANN has"
> >>Â acted.docx"
> >> Content-Description: Constitutional Court
> charged with determining whether
> >>Â ICANN has acted.docx
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> >>Â determining whether ICANN has acted.docx"; size=109908;
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> > *******************************
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> > Foundation
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>
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book (Jefferson's Moose) http://tinyurl.com/c327w2n
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publications etc. http://www.davidpost.com
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