[CCWG-Accountability] judicial/arbitral function

Adam Peake adam.peake at icann.org
Sun Jan 11 13:34:40 UTC 2015 

Hi All,

In addition to the report Avri mentions below (available here
<https://www.icann.org/en/system/files/files/owt-report-final-2007-en.pdf>,
One World Trust also produced a report in February 2014 that may be helpful
to our work "ICANN Accountability and Transparency Metrics and Benchmarks"
<https://www.icann.org/en/system/files/files/benchmarks-consultancy-28feb14-
en.pdf>  

The report covers, among other topics, an introduction to accountability
principles used by 4 international initiatives: The Global Accountability
Framework II (One World Trust); Code of Ethics for NGOs (World Association
of NGOs); INGO Accountability Charter (INGO Charter Company); The 2010 HAP
Standard in Accountability and Quality Management (Humanitarian
Accountability Partnership).

And a comparison of ICANN's accountability practices with three other
somewhat similar organizations:  World Fair Trade Organisation (WFTO),
Forestry Stewardship Council (FSC) and the International Organisation for
Standardization (ISO).

As yet this work hasn't been widely discussed.  Staff can provide more
information if that would be helpful.

Best,

Adam



From:  Avri Doria <avri at acm.org>
Date:  Friday, January 9, 2015 at 3:47 AM
To:  "accountability-cross-community at icann.org"
<accountability-cross-community at icann.org>
Subject:  Re: [CCWG-Accountability] judicial/arbitral function

Hi,

Acknowledged.

Was not saying it was necessary and sufficient just necessary. It does lay
out some worthwhile content.  ATRT2 treated it as a starting place and work
not to be ignored.

There have also been other accountability studies done of ICANN over the
years, such as the One World Trust independent review of 2007, that are
probably also worth including as background to the discussions.

avri

On 08-Jan-15 13:33, Burr, Becky wrote:
> Avri -
> 
> Reviewing the ASEP recommendations is necessary but not sufficient.  The
> registry SG noted that their efforts were a great start but that the
> constraints (time and resource) imposed by ICANN undermined their work
> product.
> 
> J. Beckwith Burr
> Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
> Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz /
> www.neustar.biz <http://www.neustar.biz>
> 
> From: Avri Doria <avri at acm.org>
> Date: Thursday, January 8, 2015 at 11:59 AM
> To: Accountability Community <accountability-cross-community at icann.org>
> Subject: Re: [CCWG-Accountability] judicial/arbitral function
> 
> Hi,
> 
> Reviewing and fixing this situation was a strong part of the intent behind the
> ATRT2 recommendation 9.2 " Explore Options for Restructuring Current Review
> Mechanisms" 
> 
> ATRT2 did not recommend specific fixes, but recommended that the ICANN
> community figure out how to fix this by establishing a Special community
> Group.  The Boaard did agree to this recommendation.  This was before the IANA
> transition was announced.
> 
> The CCWG seems to have such a mandate. One could argue that the
> CCWG-Accountabity  is indeed a special community group.
> 
> Part of that recommendation included reviewing "the 2012 Report of the
> Accountability
> Structures Expert Panel (ASEP) as one basis for its discussions."  Is that
> something perhaps this group should take a look at as port of the work flow?
> 
> avri
> 
> 
> On 08-Jan-15 10:19, Burr, Becky wrote:
>> 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>
>>> <mailto: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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