[Ccpdp-rm] NOTES | ccPDP3 Review Mechanism WG | 17 March 2021 (05:00 UTC)
Nigel Roberts
nigel at channelisles.net
Wed Mar 17 08:25:57 UTC 2021
Joke . . please note that I specifically DISagree with the use of the
English the term 'cost-neutral' but stated small and medium sized ccTLD
managers should not have to pay large costs to access justice. (Eberhard
agreed with my re-statement of his use of the expression.)
Thanks.
On 17/03/2021 06:25, Joke Braeken via Ccpdp-rm wrote:
> Dear All,
>
>
>
> Please find included below the notes form today’s ccPDP3-RM meeting held
> on Wednesday, 17 March at 5 UTC.
>
>
>
> Best regards,
>
>
>
> Joke Braeken
>
>
>
> 1. *Welcome and roll call*
>
>
>
> Welcome by Chair Stephen Deerhake
>
>
>
> *2. **Administrative announcements, if any*
>
>
>
> Public comments for ccPDP3-ret ends 14 April
>
> https://www.icann.org/public-comments/ccpdp3-1-retirement-cctlds-2021-03-03-en
> <https://www.icann.org/public-comments/ccpdp3-1-retirement-cctlds-2021-03-03-en>
>
>
>
> Comment from Patricio Poblete sent to Stephen: FOI Report mentions
> review mechanism.
>
> Experts from ccTLDs would hear IANA and the complainant and decide
> whether or not to take the complaint further.
>
> Eberhard: I can live with Patricio’s proposal, but for fairness sake I
> would suggest that:
>
> 1. IFO selects one panel member
>
> 2. the ccTLKD Manager selects one
>
> 3 the two selected one select a third one, and should they not be able
> to decide on one, we need to come up with a fair mechanism to do so
>
>
>
> *3. **Action Items*
>
>
>
> No action items from previous meeting
>
>
>
> *4. **Requirements discussion with ICANN Legal*
>
>
>
> Slides prepared by Sam Eisner
>
> Recap of what was discussed in February 2021.
>
>
>
> Areas for further clarification:
>
>
>
>>>> Is the scope still open? Binding decision of IANA or Board?
>
>
>
> Bart: the latest version of the doc you read has not been vetted yet.
> Number 4 was still unclear at the time, and is still unclear
>
> Eberhard: RFC said that decision should be binding. We do not need to
> include in our developed policy an appeal mechanism on our review
> mechanism. Binding means to ICANN and ccNSO members. They do not have a
> legal recourse in this. Therefore jurisdiction is not our problem. The
> mechanism: will you have some form of law or jurisdiction. Under what
> legal framework are RFC panels proceeding? Placeholder. Early stages of
> the discussion
>
> Sam: choice of law is further down.
>
> ccNSO policies are only applicable to ccNSO members. What happens to
> non-members? Those external to the process? Concern to apply this
> equally to all ccTLDs, whether or not they are a member of the ccNSO?
>
> Eberhard: RFC is clear. If 2 parties cannot come to an agreement they
> can apply for a review. 2 contending parties: IFO and the ccTLD manager.
> First do the internal remedies and process. Nothing we can do to prevent
> a ccTLD manager from suing.
>
> Nigel: agrees with intent. Cost-neutral. ccTLD managers are not large
> corporations.
>
> Eberhard: fan of fundamental fairness. Small ccTLD managers cannot
> afford a US lawyer that charges 500 USD per hour.
>
> Stephen: asks Eberhard to explain on the mailing list what is meant by
> fundamental fairness
>
>
>
> */Action item #1:/*
>
> Eberhard to share on the WG-mailing list what he means by fundamental
> fairness
>
>
>
>>>> Corporate Governance Fundamentals
>
>
>
> Icann board cannot defer decision making to other bodies. Fiduciary need
> discussed by several lawyers during IANA transition.
>
> Issue: empower an entity outside of ICANN/PTI to perform the iana
> function is not possible
>
>
>
> Eberhard: this is an important point. We did not consider this before.
> Should we inform Council we ran into an issue: we cannot develop a
> binding policy.
>
> Peter: confusion. Defer decision-making to other bodies: understands.
> But is the ICANN Board also not able to subject itself to mediation?
>
> Sam: the board can and does subject itself to challenges of its
> decisions. Outcome of the challenge is important. IRP for instance.
> Board to be held accountable for every decision it makes. The outcome of
> that challenge cannot dictate to the Board what it must do to remedy.
> Board is expected to act accountably. There is the ability to build in
> meaningful review or appeal mechanisms. But they need to be supportable
> and allowable within the corporate governance structure.
>
> Risk: The community could take an IRP declaration and walk in court. The
> court can compell actions, but the arbitration panel cannot compell
> actions.
>
> Nigel: urgent.
>
> Bart: this is an important point to be dealt with. To what extent are
> external reviews feasible, within the sketched parameters? Bart
> requests Sam to come up with a document in a digestible form, on what is
> feasible, to focus the discussions by the WG.
>
>
>
> */Action item #2:/*
>
> Sam Eisner to share on the WG-mailing list the parameters within which
> the reviews are feasible
>
>
>
>>>>> Questions
>
>
>
> Q1. “ccNSO members cannot go to court”
>
> Eberhard: ccNSO members are bound by icann policy. non-ccNSO members are
> not. While you are a ccNSO member you cannot take icann to court for policy
>
>
>
> Q2. What is anticipated to happen in the mediation? Impacts
> applicability and cost issues.
>
> Nigel: needs to be more than just a procedural review. Look at
> fundamental fairness.
>
> Question regarding mediation. How is it developed?
>
> Sam: understands the value of mediation. But what is the dispute about?
> There is a value of looking at things procedurally. Asking for a re-look
> at the info, to make sure the right decision is reached. This is not
> really an appeal. It does not create a legal question that you mediate
> over. What are the questions, beyond asking for the fulsome review?
>
> Eberhard: fundamental fairness. Courts decide to narrow issues: Only
> award remedies that were asked for. RFC is clear: A panel formed by IFO,
> takes a decision which is final.
>
> Q3. Who is part of the dispute?
>
> Nigel: difficult to compel government to participate in an out of
> country area. That is their problem, if they do not want to participate.
>
> Sam: agrees. It is a reality to face
>
> Nigel: contested delegation. Strict: delegation of new TLDs, change of
> managers is another bucket to consider.
>
> Sam: that was intended.
>
>
>
> ICANN Board role: confirm the process went as expected. Is there value
> in a review. Did IANA do what it was supposed to do? Why insert a step
> before the Board decision. Changing Board role to accepting review?
>
>
>
> Stephen: group has a lot to consider.
>
> Thank you to Sam on behalf of the Working Group. We will follow-up soon.
>
>
>
> *5. **Pros / cons various panels (time permitting)*
>
>
>
> *6. **Next meetings*
>
>
>
> 7 April 2021 | 13:00 UTC
>
> ccPDP3 RM / ccPDP4 IDN community webinar | 16 April at 08:00 UTC and
> 16:00 UTC
>
> 21 April 2021 | 21:00 UTC
>
>
>
> Bart: 4-week gap due to ICANN70. Staff will incorporate the points into
> the frame document, with the questions. Start discussing them, step by
> step. Ideas on how to tackle the individual points. Would be appreciated
> if you Sam could be present at the next meeting
>
>
>
> */Action item #3:/*
>
> Staff to update the frame document, based on today’s discussion
>
>
> 15 April 2021 | 08:00 AND 16:00 UTC – ccPDP Review Mechanism and ccPDP
> IDN update to the community webinar
>
> Content of the ccPDP3-update will be covered at the 7 April meeting:
> group needs to agree on what to address.
>
>
>
> */Action item #4:/*
>
> Staff and leadership team to start working on the update
> by ccPDP3-RM at the 15 April webinar.
>
>
>
> 1. *Closure*
>
> * *
>
> Thank you all
>
>
>
>
>
> Best regards,
>
>
>
> Joke Braeken
>
> ccNSO Policy Advisor
>
> joke.braeken at icann.org
>
>
>
>
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