[CCWG-ACCT] The big test of effective accountability

[Bruce Tonkin]

Hello All,


>>  Yep, the new accountability regime must go beyond just whether ICANN management followed the prescribed process, which is all that a Reconsideration Request is supposed to consider.   

>>  So let’s expand the criteria that independent review panels can use, so that humans will review a board/management decision on substantive questions of judgement.

One thing to consider here is that with respect to the reconsideration requests applying to many of the new gTLD cases – independent human judgement has already been applied.   My concern though is that in many cases it is a panellist of one that has made the decision.   The Board in general is not expert in the matters of the panellists and it doesn’t seem appropriate for the board to then try to over-ride the independent panel - unless the panelist has failed to consider the right criteria etc.   When we find that a panel hasn't considered all the material - the response is to send it back to another panel to consider.

In terms of reviewing the new gTLD program – I think it  is useful to consider how an appeals process might work.   It presumably would imply that a larger panel (e.g. 3 or more panellists) is considering an issue.   The concern I would have though is that this will just be invoked by the losing party in every case.   For reconsideration requests we had an appeal for nearly every judgement by the party that lost a judgement.    In general for every case - there was a party that was happy with the decision and a party that wasn't happy.

I compare this to a jury process in the legal system.   I don’t think you can just ask for another jury to hear the case when the first jury finds against you.   There needs to be some basis for the appeal other than that you disagree with the initial finding.

The Board is actually very keen to improve the reconsideration process, and also keen to ensure that the Board itself is not trying to over-ride independent panels .   I think the right approach in many of these cases is to make sure that appropriate appeals are built in the relevant process - whether it is new gTLDs or ccTLD re-delegations etc.

So careful work is needed to ensure that we have a process that ensures independent reviews of decisions, and also appropriate criteria to initiate a review of a decision.

Regards,
Bruce Tonkin