[CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission

Fri May 29 09:31:34 UTC 2015

>
> If we agree to the CCWG recommendations we will not be handing ultimate
> authority to the members but rather we will be handing ultimate authority
> to a state based American court and allowing it to make binding and
> precedent setting decisions about the interpretation of ICANN’s mission.

Steve, this is unavoidable. I'm no expert on US law, but any bylaw that
generally excludes the jurisdiction of courts (exceptions - commercial
arbitration etc) could potentially be struck down.

As an aside, interesting that you say "state-based" US courts..

On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco at netchoice.org>
wrote:

>  On this week's stress test team call, we looked at Chris Disspain’s
> hypothetical (at bottom).   The team had difficulty identifying a scenario
> under which a California court would, as Chris suggested, "make binding
> decisions about interpretation of ICANN’s mission.” This was due in part to
> a misunderstanding embedded in Chris’ scenario.
>
>  What we’ve done below is take Chris’ scenario and turn it into two
> scenarios that could happen under the Member powers described in the CCWG
> proposal.  We don’t think either of these scenarios would result in the
> outcome Chris worried over.
>
>    Stress Test version 1:  Board refuses to follow community
> recommendation
>
> 1. An ATRT (Accountability and Transparency Review Team) recommends a new
> policy for implementation.
>
>  2. The ICANN board decides to reject the recommendation, saying it
> conflicts with ICANN’s limited Mission Statement in the amended bylaws.
>
>  3. Community Members vote to challenge the board’s decision with an
> IRP.  An IRP panel of 3 international arbitrators (not a Court) finds that
> the ATRT recommendation does *not* conflict with “substantive limitations
> on the permissible scope of ICANN’s actions” (p.32).  The IRP panel
> therefore cancels the board decision to reject the ATRT recommendation.(pp.
> 31-32 of proposal )  Our current proposal does not give Members the power
> to force ICANN board to accept and implement the ATRT recommendation.
> (p.32)
>
>  4. If the board refused to implementing the ATRT recommendation (see
> step 1), Members could vote to recall the board.  Members could also vote
> to block the very next budget or strat plan if it did *not* include the
> ATRT recommendation.
>
>
>    Stress Test version 2:  Board follows community recommendation, but is
> reversed by IRP decision
>
> 1. An ATRT (Accountability and Transparency Review Team) recommends a new
> policy for implementation.
>
>  2. The ICANN board decides to *accept* the recommendation, believing
> that it does *not* conflict with ICANN’s limited Mission Statement in the
> amended bylaws.
>
>  3. An aggrieved party or Community Members vote to challenge the board’s
> decision with an IRP.  An IRP panel of international arbitrators (not a
> Court) finds that the ATRT recommendation *does* conflict with
> “substantive limitations on the permissible scope of ICANN’s actions”
> (p.32).  The IRP panel therefore cancels the board decision to accept and
> implement the ATRT recommendation.(pp. 31-32 of proposal )
>
>  4. If the board ignored the IRP ruling and continued to implement its
> earlier decision, parties to the IRP could ask courts to enforce the IRP
> decision.  Would that court re-litigate the IRP’s substantive decision
> interpreting the ICANN bylaws?   That is not our expectation, since it is
> only "expected that judgements of the IRP Panel would be *enforceable* in
> the court of the US and other countries that *accept international
> arbitration results*” (p.34, emphasis added)
>
>
>     5. If the ICANN Board continued to ignore the IRP decision and court
> orders to enforce it, Members could vote to recall the board. Members could
> also vote to block the very next budget or strat plan if it included
> implementation of the ATRT recommendation.
>
>
>    21/05/2015 03:45, Chris Disspain wrote  (link
> <http://mm.icann.org/pipermail/accountability-cross-community/2015-May/003035.html>
>  and excerpt below):
>
> Second, I would like to use a step-by-step scenario to explain where my
> concerns lie. Under the CCWG’s currently proposed mechanisms:
>
>  1. The community, pursuant to powers defined in a “fundamental bylaw”,
> and through a vote of that meeting the required threshold for support,
> directs the Board to do X
> 2. The Board refuses to do X because it maintains that X is outside of the
> mission of ICANN
> 3. The community triggers escalation mechanisms
> 4. Escalation proceeds to binding arbitration (as defined by another
> fundamental bylaw)
> 5. The arbitrator finds in favour of the community and directs ICANN to do
> X
> 6. The Board refuses to act, citing, again, that it believes the action is
> outside of ICANN’s mission
> 7. After the necessary community votes etc., the community now heads to
> court. In the State of California.
>
>    As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
>
> Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
>
> If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
>
> Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
>
>
>
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>

-- 
-
@arunmsukumar <http://www.twitter.com/arunmsukumar>
Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org>
National Law University, New Delhi
Ph: +91-9871943272
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