[Ccpdp-rm] NOTES | ccPDP Review Mechanism Working Group teleconference 13 October 2021 at 20:00 UTC

Wed Oct 13 21:07:57 UTC 2021

NOTES | ccPDP Review Mechanism Working Group teleconference
13 October 2021 at 20:00 UTC

  1.  Welcome

Welcome by chair Stephen

2.            Administrative matters

3.            Action items

Only action item was to send the note to icann legal.

4.            Email to ICANN legal questions

Icann legal confirmed receipt. No information yet on when we may expect to receive feedback. Hopefully by the end of the year.
Bernard: we did ask ICANN legal for feedback regarding the timeframe. Hopeful to hear back by the end of the year.

5.            ccNSO-Board meeting: introducing Retirement Policy and rationale for the policy, Q&A

Joint session: ccNSO COUNCIL & ICANN BOARD
Thursday, 28 October 2021 | 16:00-17:00 UTC

ccNSO topics:

  *   ccNSO recommended policy on the retirement of ccTLDs: introduction of the policy, its scope, why we believe it is needed. In preparation of a possible implementation process: what are the next steps from a Board perspective, and how does the roadmap look like?
  *   change of Article 10 and Annex B of the ICANN Bylaws to allow the inclusion of interested IDN ccTLD Managers in the ccNSO: what are the next steps of the process?
  *   At the end of ICANN72, Nigel Roberts will be stepping down as member of the ICANN BoD.  What are Nigel's views on his years on the Board, the relation between ICANN and the ccTLD community in general, and the ICANN Board and ccNSO specifically?
 ICANN Board topic:

  *   how to efficiently identify and work more closely with governments globally, as well as educate, train and interact when it comes to geopolitical issues relating to ICANN’s mission

Patricio: no information yet

6.            2nd reading proposed structure (IFO complaint procedure-> non-binding review -> binding review)

Update by Bernard.
Posted last week.
IFO/PTI complaint procedure => non-binding review => binding review

Non binding: simplified procedures, with reduced costs.
Agreed at the last meeting to have an interim step: non binding review
Summary: we need to work on a non-binding review, while we wait for icann’s feedback regarding our questions on binding

Eberhard: great idea to insert the non-binding mechanism. If the non-binding resolution resolves the matter for the ccTLD manager, and IFO agrees, it is sorted.
Bernard: indeed.

7.            Initial draft non-binding mechanism: introduction and first reading

Review Mechanism for IFO decisions that meets most requirements of the ccPDP3-RM, except for being binding on ICANN
Bernard introduces a summary of the proposed objectives.

>>> administrative objectives

Eberhard: 10.000 USD is not low cost
Maarten: with regard to the mandate. This is what we are supposed to do. But there is no room to discuss if the process was fair or followed correctly?
Bernard: Regardless of what the process is, did it meet this requirement? Good point. Are the rules being applied fairly? Will take note.
Peter: if (big if)  pain is the measure, then there won’t be a one-size-fits-all.
Eberhard: figure is too high. Should be painful, but not overwhelming
Peter: maybe we can postpone (read: exclude from the “reading”) the fee structure, if any
Eberhard: similar to the financial contributions
Bernard: does the general framework make sense?
Maarten: 3 panelists, costs of administration. Difficult matter to solve.
Barnard: if this is expensive, arbitration is often a significant other step.

Patricio Poblete to Everyone (22:25)
Another reference point at the other rend is the cost of a UDRP case
Eberhard Lisse to Everyone (22:26)
In Germany they have something called “Prozesskostenhilfe”, with a means test and a test of at least some prospects of success.
Peter Koch to Everyone (22:27)
In Germany we have tax payers who will bear the cost …
Eberhard Lisse to Everyone (22:27)
The latter will be very difficult and add another layer, so I am not particularly advocating this.
But, the point is it is not only for Criminal cases
Yes, Peter, and ICANN has Auction Proceeds. And, we are doing this for the ccTLDs not ICANN
Stephen Deerhake to Everyone (22:29)
New gTLD Auction proceeds should not be considered here in my view...
Peter Koch to Everyone (22:30)
_my_ point was that in the PKH case it’s wenn defined where the money will come from, in the issue under discussion we’re pushing around virtual and real cost
s/wenn/well/

>>> the administrator

No comments by the group

>>> the panel

Subject matter experts, not lawyers.

Nick: no new material late in the process, not fair on those who made the original decision. Good rule to have. But sometimes it is fair for new material to be introduced.
In the details of these rules, it needs to be lawyered over. Proper review, independently done, de novo, in all our interests. Details. It will cost something. At least 10.000
Quick. Speedy process. Lightweight. There is a bar below which you cannot go. Access to justice and costs is not a new issue. Every jurisdiction has solutions. E.g. legal aids from public funds, reimbursement etc. people should not be incentivised to bring cases that do not have merit. Small new registries with little funds should not be barred. There are ways to deal with it. This is an edge case, let this not distract us. It will costly

Bernard: no additional material at all is not a good bar. But there are ways to limit things. In terms of cost. The cost is reasonable. How we attribute the costs is something we need to look at
Eberhard: defer frivolous cases: agree with that. But we cannot put in technicalities at a very early stage, and leave it up to a board to determine whether they accept the case or not. Not fair to small cctld managers

>>> IFO

Kim: My only thought on the first reading of the IFO section that may want to be addressed is the expected confidentiality or lack thereof of all or part of the panel’s findings.

>>> The plaintiff

Eberhard:

  *   who selects the slate from which panelists can be selected, if any.  I would have no issue if the 3rd panelist came from a slate
  *   it currently says that non ccnso members cannot use the mechanism. We must find a way around this
  *   How to define publishing decisions?
Nick: There should be an attest, the plaintiff needs to be someone who is adversely impacted by the decision of the IFO. e.g. applicant for a new country code ? not necessarily a ccTLD manager?
Bernard: At the start of WG, we said that this was for ccTLD managers. We do this for ccTLDs, for ccTLD managers. Delegation of a new ccTLD: there is a possibility that the applicant is not a ccTLD operator. Only exceptions.
Nick: You need at least 90 days after resolving the internal decision. 30 days is too short.
Bernard: This is a draft. If someone argues a case in a delegation, you prevent a ccTLD from getting a delegation.
Eberhard: 45 days, ifo can always remind in the decision, about the time to apply for an independent review.
Kim: the timelines are for the community to decide. Note that there is an SLA. currently 21 days. For awareness.
Bernard: see previous section. Some procedures are impacted, such as SLA.
Eberhard: We should not prevent anyone from taking icann or ccnso to court.
Bernard: independent advice review only. Simply about this process. You do not want a disgruntled applicant to take a review process to court, or the ccNSO.
Eberhard: ccnso as legal entity does not exist. Part of icann
Go to the original decision maker. Fine. make this clear

Bernard provides a summary:  Costs were raised. suggestions by Eberhard that are interesting. Reality-check by Nick: total costs not under 10.000. To be looked into.

Peter: Is this a first reading?
Bernard: no, just a first draft of a working document
Agenda mentions 2nd reading. This is the 2nd reading  of having a mechanism. But just a very first draft of the proposed mechanism
We do not have to create the mechanism, but when we do, we need to keep in mind it is workable and affordable to all.
Bernard will review comments raised, and will suggest edits to the document presented today.
Eberhard: fair and reasonable. For ccTLD managers.

8.            AOB
9.
Eberhard takes over.
None

10.          Next meetings

10 November, same time.
Kim to share on mailing list
Peter: Are we keeping the 20 UTC time (end of DST in the northern hemisphere)?
Eberhard: discussion on mailing list. Kim to send a proposal for 10 november at 20 UTC on the mailing list.  Should anybody have issues, people to raise this on mailing list

11.          Closure

Thank you all.

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

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