[CCWG-Accountability] judicial/arbitral function

[David W. Maher]

It should be noted that until April 2013, the standard of review was:
³Requests for such independent review shall be referred to an Independent
Review Panel
("IRP"), 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.²
 
In April 2013, the Board changed the standard of review. The change was
criticized by the Registry Stakeholder Group (and possibly others) on the
grounds that it seriously narrowed the standard, with the effect of
protecting the Board from an independent review of the Board's actions to
determine whether they were consistent with the Articles and Bylaws.
David
David W. Maher
Senior Vice President ­ Law & Policy
Public Interest Registry
312 375 4849 






On 1/8/15 4:54 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://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

-------------- next part --------------
A non-text attachment was scrubbed...
Name: default.xml
Type: application/xml
Size: 3222 bytes
Desc: default.xml
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150108/d2451107/default.xml>