[CCWG-Accountability] judicial/arbitral function

[Burr, Becky]

This gets to the heart of the matter.  

The standard is critical.  Unfortunately the standard as amended by the ICANN board a couple of years ago gutted meaningful accountability - because the standard is nothing more than good faith and (on its face) permits no real review of whether or not the substantive rules were actually followed. Sadly, it did not even accomplish its ostensible purpose of curbing abuse of the process. 

The standard needs to be fixed to provide real accountability, better tools are needed to resolve abusive cases, and the board's ability to modify that standard needs to be limited. To address the kind of inconsistency and subjectivity in the decisions of new gTLD review panels, we should have a fixed group of independent panelist appointed for fixed terms and terminable only for specified bad behavior.  

If ICANN's obligation are clearly articulated in a compact that cannot be changed on a whim, the standard of review reflects that commitment, a truly independent judiciary is created to apply it, and the costs of invoking independent review permit meaningful access to those who are truly harmed, then most of my fundamental concerns about accountability would be addressed.  But the current independent review is not fit for purpose,

I think the question of whether the decisions are binding or not is far less important than the standard and the presence of a dedicated group of jurists to create consistency and precedent. If I was a member of the ICANN board I would want the decisions to be binding - and I think the claims that California law preclude this are pretty thin. But if the decisions have sufficient moral authority that may be enough. 

Sent from my iPad

> On Jan 8, 2015, at 2:56 AM, Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au> wrote:
> 
> 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://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_bylaws-2D2012-2D02-2D25-2Den-23IV&d=AwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=bpAVLVQ7xUGsmvBRdWsaGcq3tbh5-VEZ3Ocw2NQS4iA&s=kPYTvvNVUGxPEF7d2uYcu9sAuEGjnTD_o6M0N509uew&e= 
> 
> 
> 
> 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
> 
> 
> 
> 
> 
> 
> 
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