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

[Phil Corwin]

Thank you for explaining, Steve, that recourse to courts would be limited to enforcement of an arbitration panel’s decision rather than re-litigation of the merits.

Without access to court enforcement the IRP would merely have an advisory role, which is the present situation and inconsistent with the enhanced accountability being striven for.



Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Steve DelBianco
Sent: Thursday, May 28, 2015 3:38 PM
To: accountability-cross-community at icann.org
Subject: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission

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.

________________________________
No virus found in this message.
Checked by AVG - www.avg.com<http://www.avg.com>
Version: 2015.0.5941 / Virus Database: 4354/9872 - Release Date: 05/26/15
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150529/3fe80a5b/attachment.html>