[WP2] IRP Checklist

Fri Jul 24 23:13:56 UTC 2015

This is not an official position from ICANN, but rather some information that I have gained from being on staff and seeing some of the IRPs.

To date, the parties to the IRPs have essentially treated them as mediation; the panelists tend to be experienced professional arbitrators or retired jurists.  For the lawyers among this group, the selection is basically handled as in any other arbitration.  As a standing panel is developed, the ability to add additional areas of expertise to the mix could be one of the benefits, as well as the “on the job” training that would come from hearing multiple IRPs aboutt ICANN.

One of the issues that we have to keep in mind – and that we encountered as we started looking into the whole standing panel issue in 2012 – is that it’s not difficult to imagine that your more regular arbitrators may not be in a position to be in the “on call” status that we could find due to a slow down (or in the case of pre-new gTLD Program, just pure lack of numbers of IRPs) because of the timing of their “other” work (arbitrations, etc.).  We are going to have to carefully balance a reasonable retainer and rate that keeps the IRP accessible, while also attracting the right level and depth of panel members.  I see a risk in the alternative, which is creating the panel as some people’s full time jobs, particularly if we’re searching out a certain level of expertise, as that would likely price us out of many that we’d otherwise wish to serve.

(I know we’re in freeze right now, but…) If I have a vote on length of term, I’d say no longer than the length of term of a Board member, along with rights of renewal.  If we’re already concerned that a 3 year cycle for selection of board members is too long if the community is not happy with their appointees, then I don’t see that we should give more leeway to the panel that has the power to develop binding and precedential decisions over those same Board members.

From: <wp2-bounces at icann.org<mailto:wp2-bounces at icann.org>> on behalf of Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Friday, July 24, 2015 at 11:19 AM
To: David McAuley <dmcauley at verisign.com<mailto:dmcauley at verisign.com>>
Cc: "WP2 at ICANN.org<mailto:WP2 at ICANN.org>" <WP2 at icann.org<mailto:WP2 at icann.org>>
Subject: Re: [WP2] IRP Checklist

David,

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.

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.

Greg

On Fri, Jul 24, 2015 at 1:40 PM, McAuley, David <dmcauley at verisign.com<mailto:dmcauley at verisign.com>> wrote:

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).

David McAuley

From:wp2-bounces at icann.org<mailto:wp2-bounces at icann.org> [mailto: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<mailto:WP2 at ICANN.org>
Subject: Re: [WP2] IRP Checklist

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).

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.

Greg

On Fri, Jul 24, 2015 at 12:20 PM, James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>> wrote:

  1.  Overflow panelists – YES
  2.  Single panelist decisions – NO
  3.  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
  4.  Community override of bone-headed decisions – YES
  5.  Length of term – No Opinion, I can understand the arguments for various terms
  6.  Term renewal – Depends on above. YES if term <3 years NO if term >5 years
  7.  Exhaustion requirement – yes, no, “where applicable” (not sure I know how to implement third option) – No Opinion
My answers for the record above in case I don’t make the call as I’m moving house next week.
-James

From:wp2-bounces at icann.org<mailto:wp2-bounces at icann.org> [mailto: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: WP2 at ICANN.org<mailto:WP2 at ICANN.org>
Subject: [WP2] IRP Checklist
Importance: High

I’m attaching the current doc, in which I have tried to incorporate all input.  We need to reach closure on the following questions:

  1.  Overflow panelists – yes or no
  2.  Single panelist decisions – yes or no
  3.  Standard for appeal to full panel - “clear error of judgment or application of an incorrect legal standard” - is this the right standard
  4.  Community override of bone-headed decisions – yes or no
  5.  Length of term
  6.  Term renewal – yes or no
  7.  Exhaustion requirement – yes, no, “where applicable” (not sure I know how to implement third option)

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932<tel:%2B%201.202.533.2932>  Mobile:  +1.202.352.6367<tel:%2B1.202.352.6367>  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>

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