[CCWG-ACCT] Follow up from the last CCWG call

Wed Apr 8 03:38:21 UTC 2015

I have had a role in reconsideration requests for some time. It has become the practice of the BGC in issuing a decision, to suggest to the parties that if they are unhappy with the process then they can bring the matter to me as the ombudsman. My role is of course limited to examining issues of fairness in the process. I do not have any jurisdiction, and nor should I have any, in examining the merits of any decision made by the BGC on a reconsideration. What I look at is whether the parties had proper opportunities to explain their grievance, and whether this was processed by the BGC in accordance with rules of natural justice. By this I mean whether the parties had a full opportunity to be heard, whether there was any material not disclosed to the parties but possibly used by the BGC in coming to a decision, whether there were any issues of bias and similar issues.

The problem with designing a dispute resolution system is that you need to decide at an entry-level, what sort of disputes should qualify. I am not sure there is much debate or discussion on the range of issues which would qualify. This has some effect on my role as ombudsman, because I have a mandate to deal with the particular issues of fairness and delay within the community. Defining those terms has not always been simple. But other dispute resolution issues may not be appropriate for an ombudsman. The gateway for any system must therefore take into account the range of disputes and the appropriate forum. The ombudsman model, for example, uses informality, confidentiality, neutrality and investigates facts. There is considerable emphasis on the use of mediation and shuttle diplomacy and I am limited to making a recommendation. I cannot issue a binding decision. These are critical elements of any ombudsman office, because we adhere to the model used by the International Ombudsman Association, a professional body of ombudsman.

If therefore the accountability examination is to review the way in which dispute resolution is handled within the ICANN community, we need to consider the way in which disputes are categorised, and the appropriate forum and procedure. If the ombudsman is to have a greater role, this needs to be considered in the context of the ombudsman model which I refer to briefly above. Disputes not suitable for the ombudsman need to be considered and outlined, and an appropriate procedure and forum created for them. The ombudsman would still have a role in ensuring that fairness in the process of the other forms of dispute resolution procedure continues to be observed.

Please excuse this longer exchange, but I am anxious to ensure that people understand my role and function and mandate.

Chris LaHatte

Ombudsman

Blog  https://omblog.icann.org/

Webpage http://www.icann.org/en/help/ombudsman

Confidentiality

All matters brought before the Ombudsman shall be treated as confidential.  The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint.  The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, April 08, 2015 10:14 AM
To: Edward Morris
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Follow up from the last CCWG call

I think there should be a role for the Ombudsman here.  I'm not sure that making a recommendation to the Board is the right one.  It may be that the Ombudsman should help the aggrieved party examine their case and help see if they can find grounds for a viable reconsideration.  I know that Chris LaHatte participates in this list, and I would love to have his views on what would be the most "ombudsmanic" role for the Ombudsman in this case.

Greg

Gregory S. Shatan * Abelman Frayne & Schwab

Partner | IP | Technology | Media | Internet

666 Third Avenue | New York, NY 10017-5621

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gsshatan at lawabel.com <mailto:gsshatan at lawabel.com> 

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www.lawabel.com <http://www.lawabel.com/> 

On Tue, Apr 7, 2015 at 4:50 PM, Edward Morris <egmorris1 at toast.net <mailto:egmorris1 at toast.net> > wrote:

On Tue, Apr 7, 2015 at 5:41 PM, Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> > wrote:

The circular nature of the RR process is a significant concern.  It is almost Kafka-esque.  

Of course, that's the re part of reconsideration.

My impression is that one of the problems is that reconsideration takes place largely without much real new input for the Board to consider. The aggrieved party merely re-argues its case before the same people that made the initial decision. No surprise then that over 95% of reconsideration requests are unsuccessful.

One approach to change this would be to include, at the Requestor's option, an intermediary process where the Ombudsman could look at the Request and make a recommendation to the Board for action/inaction. The basis of the recommendation would need to be stated (we perhaps would need to expand the remit of the Ombudsman, in this instance, to do so) and rather short time limits would need to be involved so decisions are reached in a reasonable timeframe, but it would be a way to get the contentious issue before a set of independent eyes before it reverts back to the Board. A bit less Kafka-esque and hopefully enough to make the reconsideration process as bit less predictable in terms of outcome and a better mechanism for true accountability.

Ed  

Greg

On Tue, Apr 7, 2015 at 12:28 PM, Robin Gross <robin at ipjustice.org <mailto:robin at ipjustice.org> > wrote:

Thanks, Izumi for joining this conversation on reconsideration request.  But we aren't adding it as a "new" issue to WS1 however, it has been in WS1 since the Frankfurt meeting in January.

There are a couple additional issues that we need to bring in to the discussion on Reconsideration Request reform, however.

One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before.  There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request.  I'd be interested to hear what others think of this circular aspect of the RR process.

Thank you,
Robin

On Apr 7, 2015, at 7:20 AM, Izumi Okutani wrote:

> Hello all,
>
>
> I'd like to follow up from the last call for reconsideration being list as WS1 requirement.
>
> As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair.
> The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed?
>
> As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it.
> At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1.
>
> We have at this point identified as WS1 :
>
> - Enhancing ICANN's Mission and Core Values
> - Develop Fundamental Bylaw
> - Strengthening the existing independent review process, and
> - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget"
>
> It looks like we already have several core powers to ensure accountability of key decisions.
>
> I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1.
>
> As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point.
>
> I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1.
>
>
> Best Regards,
> Izumi Okutani
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-- 

Gregory S. Shatan * Abelman Frayne & Schwab

Partner | IP | Technology | Media | Internet

666 Third Avenue | New York, NY 10017-5621

Direct  212-885-9253 <tel:212-885-9253>  | Main 212-949-9022 <tel:212-949-9022> 

Fax  212-949-9190 <tel:212-949-9190>  | Cell 917-816-6428 <tel:917-816-6428> 

gsshatan at lawabel.com <mailto:gsshatan at lawabel.com> 

ICANN-related: gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> 

www.lawabel.com <http://www.lawabel.com/> 

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