[Ccpdp-rm] NOTES | ccPDP3-RM | 4 August 2021 (20:00 UTC)

Wed Aug 4 21:03:36 UTC 2021

Dear All,

Please find included below the high-level notes from today’s ccPDP-RM meeting, held on 4 August at 20 UTC.

Thanks you and best regards.

Joke Braeken

1.      Welcome and roll call

Welcome by Chair Stephen Deerhake.

Thanks all for joining today.

Workspace: https://community.icann.org/x/L4n8CQ

2.                  Administrative announcements if any

ccPDP3-ret The ccNSO membership supports the ccNSO Council's recommendation to adopt the proposed policy on the retirement of ccTLDs.

https://ccnso.icann.org/en/announcements/announcement-29jul21-en.htm

Quorum was met, supermajority as well.

ccPDP3-RET WG will not be closed yet. If there is a need for a supplemental recommendation, the WG is still in existence.

Next steps: A report on the voting will be sent to the Issue Manager. The report will be included in the Draft Board Report, which - after approval by the ccNSO Council - will be submitted to the ICANN Board of Directors, as per Annex B, section 14 of the ICANN Bylaws<https://www.icann.org/resources/pages/governance/bylaws-en/#annexB>.  September council meeting: adoption of the Board Report. Suggestion: Then introduce it during ICANN72 AGM to the Board in a joint meeting.

3.      Action items

Secretariat to convene the small team to start the item 1 discussion. The group met earlier today. Bernard will report back on the discussion to date, and the plan going forward

4.                  Fundamental fairness (second reading)

Revisit Eberhard’s presentation from the previous meeting, where he presented on fundamental fairness. Discussion today, opportunity to ask questions. That is the second reading.

No questions or comments by WG members.

Eberhard refers to the slide on natural justice (duty to act fairly). 2 components:

  *   Rule against bias (incl. Fundamental fairness)
  *   Right to a fair hearing (incl. Procedural fairness)

In Eberhard’s view this should also be for IFO and ICANN’s decision. In that case our review would not be necessary.

Objections to including this into our work project moving forward?

Eberhard: invites lawyers to share thoughts.

Nick: Maarten is on holiday. Concepts vary from jurisdiction to jurisdiction. Icann context: apply globally, but needs to be implemented locally.

5.                  Update Principles

Issues raised by Eberhard regarding:

                2: Predictability and Legitimacy of IANA processes.  The (outcome) of

                the processes of delegation, transfer, revocation, and retirement of

                ccTLD should be stable and the (outcome of the) process should be

                reasonable and predictable to all Significant Interested Parties,

                including the ccTLD Manager.

Eberhard proposes:

                2: Predictability and Legitimacy of IANA processes.  The (outcome) of

                the processes of delegation, transfer, revocation, and retirement of

                ccTLDs should be stable, reasonable and predictable.

Support by several WG members on the mailing list.

Bart provides an overview of the changes. Red-line version displayed in the Zoom Room.

Nigel challenges principles 1 and 2. Should it read: General principles *of* the Review Mechanism. ?  In that case, 1 and 2 should not be part of the principles. Refers to the overriding objective of the Review Mechanism. Does not support stability, or predictability. Supports the items, but the overall objective should be to provide a fair and speedy and predictable appeals mechanism

Eberhard: agrees. Easy-fix. This is an easy fix. Overarching principle. Re-draft 1st paragraph. Content to remain in doc, but the overarching principle is indeed the goals of this PDP WG.

Bart: if you focus on the headings. Purpose of the overarching principles sets the parameters of the RM. once the RM is done, what are the boundaries.

Peter: we are reproducing principles that are valid anyway.

Patricio: this doc states the overall principles of the design of the RM. As such, the general principles should not re-state the goal of the process. That is included in the charter.

Eberhard: we should be clearer. To avoid misunderstanding.

Bart: does this address the concern you raised?

Nigel: no. both 1 and 2 are valid and true. But not relevant to an appeal mechanism. How are icann and iana engaged when running an appeals process? To include: why we have a RM, and what the parameters are. E.g. low cost, speedy process.

Nigel: it needs wordsmithing.

Bart: Nigel, please come up with alternative wording by next meeting

Nigel: yes, will do so

Patricio: specifications for RM.  the requirement is RM not to endanger stability of DNS. also should be predictable. In that way better understand what we receive.

Action item #1

Nigel to prepare alternative wording regarding the general principles by the next ccPDP3-RM meeting.

Concerns or questions regarding number 6?

Eberhard:  this overlooks the fact that the principle of fundamental fairness implies “no bias” and “right to a fair hearing”

                Action item #2

Secretariat to update item 6, as per Eberhard’s suggestion, based on the slide deck Eberhard shared during the previous meeting

Number 2. Suggestion by Eberhard on the mailing list.

Supported on the mailing list by Patricio, Vanda, Sean.

Proposed language:

2: Predictability and Legitimacy of IANA processes.  The (outcome) of

                the processes of delegation, transfer, revocation, and retirement of

                ccTLDs should be stable, reasonable and predictable.

Bart proposed to include the text as suggested by Eberhard.

Eberhard: remove the specifics.

Does the group support the text as proposed by Eberhard?

Some green marks, no red ones.

Patricio: if the wording of number 6 changes. Observation regarding the phrase with the choice is not relevant anymore.

Eberhard: just a language issue. Can be fixed.

Patricio: pending the result, that is ok.

My observation referred to the phrase "informed choice to make a choice whether to contest and assert the choice”. We’ll see how it is in the new version.

6.                  Discussion on “bindingness” of the outcome

WG is referred to as the BWG. Consists of Nick, Peter, Allan, Maarten. Supported by Bart, Kim, Bernie.

The group considered appeals options for gTLDs. Most gtLD contracts include a clause to solve conflicts through ICC. not through IRP.

The BWG considered the recent IRP cases. Mostly about new gTLDs. Potentially in conflict with icann bylaws and articles of incorporation. Long duration, expensive. Icann IRP is now binding on ICANN. This is open to anyone who wishes to challenge icann. The decisions by the IRP panel are now binding on the Board. Reviews of ccTLD decisions about RFC1591, FoI, management of IFO.

Nigel: IRP binding on Board. This is relatively new. Carved out that ccNSO and ccTLD matters are not included in the accountability mechanism. But: similar viewpoint. Make it binding, so that the board needs to abide by it. Not just breaches of icann bylaws, but also its fundamental values.

Bernie: ccNSO opted out of IRP. but could decide to use the process, or a similar one. Would not fit for ccTLD appeal

Who makes decisions? The Icann board confirms the IFO follows the recommendations. This causes the change in the root. Verification of procedure.

Nigel: board has fiduciary responsibility. Simply to say we just follow the process is easy. But we also need to take ownership of the decisions we make.

Bernard: variety of approaches by the Board over the years

BWG noted: Revocation of a ccTLD: no documentation on iana website.

Conclusion: BWG will meet weekly to develop questions for ICANN legal regarding binding, which will be presented to the full group first.

Eberhard: if we abide by the rule against bias, where an external arbitrator makes a decision that sticks. Whatever external may mean

Bernard: that is indeed a definition of binding, which matches up with your definition of fundamental fairness

Nigel: I'm thinking that even if much of the IRP principles can be adopted into our policy, we may have additional things to take into account the international nature of the relationship between most ccTLDs and ICANN

7.                  AOB

None

Stephen welcomes feedback by all regarding the way he manages the meetings.

8.                  Next meetings

18 August (deferred)

1 September, 20 UTC

The small WG will not be ready by 18 August, several meetings needed before being able to deliver a coherent proposal. Earliest ready on 1 sept. 10 people took the poll during today’s meeting.

Stephen suggests canceling the 18 aug meeting.

Joke Braeken
ccNSO Policy Advisor
joke.braeken at icann.org

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