[WP2] IRP Checklist

David Post david.g.post at gmail.com
Fri Jul 24 22:48:59 UTC 2015 

At 02:19 PM 7/24/2015, Greg Shatan wrote:

>Courts have full-time judges (plus judges on 
>senior status, visiting judges and other methods 
>of filling the bench).  I did not think that 
>this panel would be full-time 
>employees.  Rather I expected that they would 
>be either professional arbitrators who will have 
>cases coming to them from a variety of sources, 
>or lawyers in private practice who handle 
>arbitration as part of their workload.Â

I see this differently.  I would hope the IRP 
would not be not composed of "professional 
arbitrators who will have cases coming to them 
from a variety of sources," or "lawyers in 
private practice who handles arbitration as part 
of their workload," because they'll have no skin 
in the game: no long-term interest in DNS 
policy-making or ICANN, no sense of how one 
dispute relates to earlier disputes or how it 
might affect later disputes, no appreciation for 
the role that different entities and groups play 
in the whole DNS landscape or the history of 
their relationships.  That's perfectly fine for 
ordinary commercial arbitration, where the 
question is whether party X did the work required 
or party Y has to pay for it.
But the IRP is going to have very different 
questions before it, and a much broader power 
than ordinary arbitrators have (i.e. the power to 
invalidate Board action), and I don't think it 
makes sense to give that kind of power to an 
institution structured like that - and doing so 
will likely undercut the very power the IRP is supposed to exercise.

David

>It would be helpful to know what ICANN's 
>experiences have been to date. In the .africa 
>case there was a considerable delay in replacing 
>one of the panelists after his unfortunate death.
>
>GregÂ
>
>On Fri, Jul 24, 2015 at 1:40 PM, McAuley, David 
><<mailto:dmcauley at verisign.com>dmcauley at verisign.com> wrote:
>Â
>These are fair points, Greg, but in my opinion 
>seven would be plenty, and like courts around 
>the world the panelists can handle more than one “case” at a time.
>I also worry that the larger the panel the more 
>inclination there might be to stray and find 
>important work to do that the community did not give to the panel.
>If this number becomes an issue maybe it can be 
>revisited in the periodic ATRT-like review by 
>the community that the IRP might be subject to (another thing to decide). Â
>David McAuley
>From: 
><mailto:wp2-bounces at icann.org>wp2-bounces at icann.org 
>[mailto:wp2-bounces at icann.org] On Behalf Of Greg Shatan
>Sent: Friday, July 24, 2015 12:31 PM
>To: James Gannon
>Cc: WP2 at ICANN.org
>Subject: Re: [WP2] IRP Checklist
>Â
>I continue to think that a "standing panel" of 7 
>is too small (and reducing to 5 goes in the 
>wrong direction).  I'm not sure how many 
>"sitting panels" there will be simultaneously, 
>or how many "sitting panels" we expect a 
>panelist to sit on simultaneously.  Panelists 
>may not have the bandwidth to take on more than 
>one sitting panel at a time.  If that's the 
>case, there can be no more than 2 proceedings at 
>any given time (and the choices for the second 
>panel are obviously limited), unless we reach 
>into the standby pool.  I would think a panel 
>of at least 9 standing panelists would be better 
>(so we can have 3 proceedings at any given time 
>without necessarily going into the standby pool).
>
>Â
>I'm not sure where the idea of reducing to 5 
>came from, or what assumptions support 
>that.  Those assumptions must include either 
>low incidence of panels or wide bandwidth of 
>panelists.  I'm not comfortable assuming either.
>Â
>Greg
>Â
>On Fri, Jul 24, 2015 at 12:20 PM, James Gannon 
><<mailto:james at cyberinvasion.net>james at cyberinvasion.net> wrote:
>Overflow panelists – YES
>Single panelist decisions – NO
>Standard for appeal to full panel - “clear 
>error of judgment or application of an incorrect 
>legal standard” - is this the right standard – 
>YES but may be space for additional ones
>Community override of bone-headed decisions – YES
>Length of term – No Opinion, I can understand 
>the arguuments for various terms
>Term renewal – Depends on above. YES if term <3 yeaars NO if term >5 years
>Exhaustion requirement – yes, no, “where 
>appliicable” (not sure I know how to implement third option) – Noo Opinion
>My answers for the record above in case I 
>don’t make the call as I’m moving house next week.
>-James
>Â
>Â
>From: 
><mailto:wp2-bounces at icann.org>wp2-bounces at icann.org 
>[mailto:wp2-bounces at icann.org] On Behalf Of Burr, Becky
>Sent: Friday, July 24, 2015 4:26 PM
>To: <mailto:WP2 at ICANN.org>WP2 at ICANN.org
>Subject: [WP2] IRP Checklist
>Importance: High
>Â
>I’m attaching the current doc, in which I have 
>tried to incorporate all input.  We need to 
>reach closure on the following questions:
>Â
>Overflow panelists – yes or no
>Single panelist decisions – yes or no>
>Standard for appeal to full panel - “clear 
>error of judgment or application of an incorrect 
>legal standard” - is this the right standard
>Community override of bone-headed decisions – yes or nno
>Length of term
>Term renewal – yes or no
>Exhaustion requirement – yes, no, “where 
>appliicable” (not sure I know how to implement third option)
>Â
>J. Beckwith Burr
>Neustar, Inc. /Â Deputy General Counsel and Chief Privacy Officer
>1775 Pennsylvania Avenue NW, Washington, DC 20006
>Office: <tel:%2B%201.202.533.2932>+ 
>1.202.533.2932Â Â 
>Mobile:Â 
><tel:%2B1.202.352.6367>+1.202.352.6367Â Â /Â 
><mailto:becky.burr at neustar.biz>becky.burr at neustar.biz / www.neustar.biz
>
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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
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