[CCWG-Accountability] judicial/arbitral function

[Paul Rosenzweig]

Thanks Bruce ... we are thinking in parallel I think.  For me, the
difference between "review" (i.e. recommendations) and "judicial/arbitral
function" (i.e. binding decision that mandates implementation) is key.
Without a binding answer, the parties to the dispute are free to ignore the
result (at some cost of public perception, but not at any direct cost).
With a binding answer, they are not ....

Paul

**NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***
509 C St. NE
Washington, DC 20002

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
O: +1 (202) 547-0660
M: +1 (202) 329-9650
Skype: +1 (202) 738-1739 or paul.rosenzweig1066
Link to my PGP Key

-----Original Message-----
From: Bruce Tonkin [mailto:Bruce.Tonkin at melbourneit.com.au] 
Sent: Thursday, January 8, 2015 5:54 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-Accountability] judicial/arbitral function

Hello Paul,

>>    And that, in turn emphasizes why it is necessary as part of the
transition to define the Board's/ICANN's scope of authority.  A
judicial/arbitral function can only resolve disputes and cabin capture/abuse
if it has an articulated standard against which to measure the dispute.  In
the absence of such pre-existing guidance the judiciary/arbiter is simply
substituting his/her/its own judgment for the Board and the Community, which
is not a good thing.

Agreed.   The current primary documents that an independent function could
base a judgement on is whether ICANN is complying with its bylaws and its
Articles of Incorporation. 

For example the current independent review process identified in the bylaws
states :

 https://www.icann.org/resources/pages/bylaws-2012-02-25-en#IV



1. "..   ICANN shall have in place a separate process for independent
third-party review of Board actions alleged by an affected party to be
inconsistent with the Articles of Incorporation or Bylaws.

2. Any person materially affected by a decision or action by the Board that
he or she asserts is inconsistent with the Articles of Incorporation or
Bylaws may submit a request for independent review of that decision or
action.  In order to be materially affected, the person must suffer injury
or harm that is directly and causally connected to the Board's alleged
violation of the Bylaws or the Articles of Incorporation, and not as a
result of third parties acting in line with the Board's action."

Also:

"Requests for such independent review shall be referred to an Independent
Review Process Panel ("IRP Panel"), which shall be charged with comparing
contested actions of the Board to the Articles of Incorporation and Bylaws,
and with declaring whether the Board has acted consistently with the
provisions of those Articles of Incorporation and Bylaws. The IRP Panel must
apply a defined standard of review to the IRP request, focusing on:

	a. did the Board act without conflict of interest in taking its
decision?;

	b. did the Board exercise due diligence and care in having a
reasonable amount of facts in front of them?; and

	c. did the Board members exercise independent judgment in taking the
decision, believed to be in the best interests of the company?"

The Independent Review Process Panel  shall have the authority to:

"a. summarily dismiss requests brought without standing, lacking in
substance, or that are frivolous or vexatious;

b. request additional written submissions from the party seeking review, the
Board, the Supporting Organizations, or from other parties;

c. declare whether an action or inaction of the Board was inconsistent with
the Articles of Incorporation or Bylaws; and

d. recommend that the Board stay any action or decision, or that the Board
take any interim action, until such time as the Board reviews and acts upon
the opinion of the IRP;

e. consolidate requests for independent review if the facts and
circumstances are sufficiently similar; and

f. determine the timing for each proceeding."


The discussion in recent years is that the output of the Independent Review
process is not binding.   Ie it is not binding arbitration - simply an
independent "review". 


The bylaws could be updated to better " define the Board's/ICANN's scope of
authority", and the Cross Community Working Group could consider what
changes are necessary to the current Independent Review mechanism.   For
example the ability and process to update the bylaws could be updated.


Regards,
Bruce Tonkin







_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community