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

Wed Jul 22 22:56:21 UTC 2015

David,

I'm also no fan of the current IRP.  I think your distinction is again
semantic. When I refer to "revising" the IRP, I'm not suggesting that we
engage in timid tweaks.  Our goals are the same.

But practically, it's a lot easier to overhaul the IRP bylaw than to start
from scratch.  The bones of the provision aren't bad, and it gets us where
we're going faster.

I suppose, based on my legal background, I use "revise" when I mean "I'm
going to change everything in your document I don't like, and if there's
anything left from what you did, consider yourself lucky."

Greg

On Wed, Jul 22, 2015 at 6:41 PM, David Post <david.g.post at gmail.com> wrote:

>  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.Â
> Unfortunately, the word "panel" can be used here in two different ways.Â
> 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").Â  The
> other is "the subgroup of people in a pool chosen to sit and hear a
> particular case." (a/k/a the "sitting panel").Â  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.Â  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.Â  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 ofÂ 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 theÂ 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.Â
> Currently, the pool is 6-9 members (as seen above).Â  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.Â  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*Â review).Â  If the full standing panel is too big that may create
> issues.Â  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,Â  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.Â  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.Â  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.Â  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?Â  If so, I think that's also not > a very
> good idea, for many of the same reasons as the above.Â  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.Â  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 <%2B%201.202.533.2932>Â  Mobile:Â
> +1.202.352.6367Â  / >> becky.burr at neustar.biz <
> mailto:becky.burr at neustar.biz <becky.burr at neustar.biz>> / >>
> www.neustar.biz < http://www.neustar.biz/> >> 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
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> ******************************* > David G Post - Senior Fellow, Open
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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
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