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

Fri May 29 18:55:33 UTC 2015

Thanks for your question Sam. 

My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set)

If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? 

Isn't that the protection we are talking about ? 

Best

Mathieu Weill
---------------
Depuis mon mobile, désolé pour le style

> Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr at neustar.biz> a écrit :
> 
> Good point.  I think there is an answer, but if not it is very fixable.
> 
> 
> 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
> 
> From: Samantha Eisner <Samantha.Eisner at icann.org>
> Date: Friday, May 29, 2015 at 1:41 PM
> To: Becky Burr <becky.burr at neustar.biz>, Steve DelBianco <sdelbianco at netchoice.org>, Accountability Community <accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
> 
> In the stress test v2 that Steve set out below, doesn’t that call out a different issue?
> 
> The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team).  What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so?  What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about?
> 
> 
> 
> From: <Burr>, Becky <Becky.Burr at neustar.biz>
> Date: Friday, May 29, 2015 at 7:19 AM
> To: Steve DelBianco <sdelbianco at netchoice.org>, Accountability Cross Community <accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
> 
> I think this is basically right.  But I think there are ADDITIONAL safeguards that makes litigation even less likely.  For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board.  Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP.   If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block.  
> 
> 
> 
> 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
> 
> From: Steve DelBianco <sdelbianco at netchoice.org>
> Date: Friday, May 29, 2015 at 9:50 AM
> To: Accountability Community <accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
> 
> The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. 
> 
> But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement.
> —Steve
> 
> 
> 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 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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