[CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Malcolm Hutty malcolm at linx.net
Wed Feb 17 10:11:41 UTC 2016

On 17/02/2016 01:28, Bruce Tonkin wrote:
> Our view is that past cases relating to disagreement on GAC advice
> have been focussed on concerns that ICANN is exceeding its mission or
> is not following its processes.

What has happened in the past is not necessarily the boundary of
everything that might foreseeably happen in the future.

Consider the scenario of the following hypothetical GAC advice:
"Where an Early Warning has been received, processing of the Application
shall be suspended until such time as the Early Warning is withdrawn".

Implementation of such a rule would give each and every government an
independent veto on new gTLDs. This might be said to be transformative.
I am sure it is not what the NTIA has in mind. Perhaps it might even be
sufficient that the community might wish to insist it is not adopted.

I cannot see that the IRP provides a route for preventing the Board from
accepting and implementing such advice.

If one community wished to propose dismissing the Board for vesting such
a veto power in governments, should the GAC get to participate in that
decision? I think the logic of Becky's compromise carve-out is that it
should not.

More generally, I cannot see why the community would ever wish to
dismiss the Board having won an IRP case, unless it be because the Board
disregarded or defied the IRP ruling. If the community won an IRP and it
was accepted, it would have had sufficient remedy.

Board dismissal exists to cover cases that are not susceptible to IRP
determination, either because the rules are inadequate, or because the
complaint is simply non-justiciable in character.

            Malcolm Hutty | tel: +44 20 7645 3523
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