[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

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.

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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