[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11

Kavouss Arasteh kavouss.arasteh at gmail.com
Tue Jan 26 08:05:54 UTC 2016


Nigel,
Thank you for the examples
May you advise which court and on what occation and what date such an
intresting views made by judge in that court.
Regards
Kavouss

2016-01-26 2:48 GMT+01:00 Chris LaHatte <chris.lahatte at icann.org>:

> A number of people have commented about the role of the ombudsman with
> some of the suggested changes. Bruce Tonkin has commented in some detail
> which is very helpful. The office of the ICANN ombudsman, subscribes to the
> standards of ombuds practice as outlined by the International Ombudsman
> Association. I have extracted from the website the following description of
> what we do and do not do
> https://www.ombudsassociation.org/Resources/Frequently-Asked-Questions.aspx
>
>
>
>
>
> *Activities and functions* most frequently undertaken by an ombudsman
> include, but are not limited to:
>
>    - Listens and understands issues while remaining neutral with respect
>    to the facts. The ombudsman doesn’t listen to judge or to decide who is
>    right or wrong. The ombudsman listens to understand the issue from the
>    perspective of the individual. This is a critical step in developing
>    options for resolution.
>    - Assists in reframing issues and developing and helping individuals
>    evaluate options. This helps individuals identify the interests of various
>    parties to the issues and helps focus efforts on potential options to meet
>    those interests.
>    - Guides or coaches individuals to deal directly with other parties,
>    including the use of formal resolution resources of the organization. An
>    ombudsman often seeks to help individuals improve their skill and their
>    confidence in giving voice to their concerns directly.
>    - Refers individuals to appropriate resolution resources. An ombudsman
>    may refer individuals to one or more formal organizational resources that
>    can potentially resolve the issue.
>    - Assists in surfacing issues to formal resolution channels. When an
>    individual is unable or unwilling to surface a concern directly, the
>    ombudsman can assist by helping give voice to the concern and /or creating
>    an awareness of the issue among appropriate decision-makers in the
>    organization.
>    - Facilitates informal resolution processes. An ombudsman may help to
>    resolve issues between parties through various types of informal mediation.
>    - Identifies new issues and opportunities for systemic change for the
>    organization. The unique positioning of the ombudsman serves to provide
>    unfiltered information that can produce insight to issues and resolutions.
>    The ombudsman is a source of detection and early warning of new issues and
>    a source of suggestions of systemic change to improve existing processes.
>
>
> *What an ombudsman does not do**:*
>
>
>    - Because of the informal, neutral, confidential and independent
>    positioning of an ombudsman in an organization, they typically do not
>    undertake the following roles or activities:
>    - Participate in formal investigations or play any role in a formal
>    issue resolution process
>    - Serve in any other organizational role that would compromise the
>    neutrality of the ombudsman role
>    - Receive notice for the organization
>    - Make binding decisions or mandate policies
>    - Create or maintain records or reports for the organization
>
>
>
> It is important to note that this is a suggested list and not an
> exhaustive list. Over the 12 years of the ICANN ombudsman, my predecessor
> and I have attempted to use the IOA guidelines for best practice within the
> office. It is worth noting that we consistently have declined to act as an
> appeal authority, but have only sought to look at the issue of whether a
> decision has been fair. This means that while the decision may not be
> something which we would support on an appeal basis, if the process has
> been fair, then we would not interfere with the decision or criticise what
> has been done. Of course, it is conceivable that a decision could be so
> outrageously wrong that it could become unfair. That is however a very
> unlikely event given the checks and balances before decisions are generally
> made within the ICANN community.
>
>
>
> As to the resources to evaluate a reconsideration request, if the
> ombudsman was looking at these on the same basis as dealt with
> historically, then I would be looking at the fairness of the decision, but
> would not seek to review the logic or legal basis for the decision.
>
>
>
> There is nothing wrong in principle with giving the ombudsman a wider role
> in reviewing a reconsideration request, but there certainly would be a need
> for resources to evaluate complex reconsideration requests. It is difficult
> to predict the volume of reconsideration requests, now that the new gTLD
> program is largely completed. Before this programme, reconsideration
> requests were relatively rare, and I suspect that this will revert to a
> much lower volume of requests looking forward. However if my office was to
> receive reconsideration requests then I would will try to facilitate
> resolution by informal processes in any event including shuttle diplomacy
> and mediation. If this was not successful, any report which I then wrote
> would need to be restricted to the fairness of the reconsideration
> decision. If this was the proposal, then that would not need to be any
> changes to my present bylaw and framework. If there were substantial
> numbers, then the additional resources would be likely to include a
> research assistant and possibly more clerical support. But the analysis of
> the new gTLD reconsideration requests, while involving a substantial amount
> of time, has been possible within my existing workload. The real issue is
> what the community wants the ombudsman to do.
>
>
>
> The essence of the practice of an ombudsman is to ensure that there is
> fairness within the organisation and community. Sometimes this means we try
> to ensure the parties open communication and resolve the issue themselves.
> When this is not possible we recommend, but it would be unusual for an
> ombudsman to have the power to compel some action, and possibly
> inconsistent with the IOA standards.
>
>
>
> I hope this places the comments in context, but would be happy to engage
> in discussion of the working group finds this necessary.
>
>
>
> Regards
>
>
>
> Chris LaHatte
>
> Ombudsman
>
> Blog  https://omblog.icann.org/
>
> Webpage http://www.icann.org/en/help/ombudsman
>
> For feedback on how I am doing http://www.icannombudsman.feedback/
>
>
>
>
>
>
>
> Confidentiality
>
> All matters brought before the Ombudsman shall be treated as
> confidential.  The Ombudsman shall also take all reasonable steps necessary
> to preserve the privacy of, and to avoid harm to, those parties not
> involved in the complaint being investigated by the Ombudsman.The Ombudsman
> shall only make inquiries about, or advise staff or Board members of the
> existence and identity of, a complainant in order to further the resolution
> of the complaint.  The Ombudsman shall take all reasonable steps necessary
> to ensure that if staff and Board members are made aware of the existence
> and identity of a complainant, they agree to maintain the confidential
> nature of such information, except as necessary to further the resolution
> of a complaint.
>
>
>
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>
>
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