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

Fri May 29 09:32:49 UTC 2015

The aside was to Chris - sorry Steve!

On Fri, May 29, 2015 at 11:31 AM, Arun Sukumar <arun.sukumar at nludelhi.ac.in>
wrote:

> 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.
>>
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>
>
> --
> -
> @arunmsukumar <http://www.twitter.com/arunmsukumar>
> Senior Fellow, Centre for Communication Governance
> <http://www.ccgdelhi.org>
> National Law University, New Delhi
> Ph: +91-9871943272
>

-- 
-
@arunmsukumar <http://www.twitter.com/arunmsukumar>
Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org>
National Law University, New Delhi
Ph: +91-9871943272
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150529/1c7e96fa/attachment.html>