[Ccpdp-rm] Fundamental Fairness and Bindingness

[Nick Wenban-Smith]

Very interesting and informative read, thanks for sharing.

Might need a bit of time to reflect some more on it but it would strongly support that a review mechanism such as the IRP is tantamount to a binding arbitration process; open question whether a lighter touch review mechanism would also be binding.

It's actually very reassuring to read in black and white the accountability mechanisms do seem to work!

-----Original Message-----
From: Ccpdp-rm <ccpdp-rm-bounces at icann.org> On Behalf Of Dr Eberhard W Lisse via Ccpdp-rm
Sent: Tuesday, September 21, 2021 1:32 PM
To: ccpdp-rm at icann.org
Subject: [Ccpdp-rm] Fundamental Fairness and Bindingness

All,

I have had the opportunity to read

	 https://secure-web.cisco.com/1B0M-E40X2jrNI5CxSr2I3NouF1CxYkqjvhaRpssKfUtv-e7Y768J3jcywbwNTG5V7n1yhAkxu3LjSJ4zJa468GywXk4Ffg-NrEAnkP31fS9xmpO5743HZyjMpR_CCKlGnvHEV0b-17u9PD5gBgDVtgarV4FSf3If73pGyFfP-pSBZF3RaxNFlVkvvkYRMWlcDWH5hZGiqYFN77pN93jQ6YOK9FUVUp7YHn_uOabEpz0/https%3A%2F%2Fwww.courts.ca.gov%2Fopinions%2Fdocuments%2FB302739.PDF

a copy of which I enclose for ease of reference.

It is the Appeal Judgement in the .AFRICA case, which is remarkably readable.

Leaving aside the .AFRICA issue (I happen to agree with the reasoning, by the way), it does inform the work of our Group in a number of
aspects:

	 ICANN is bound to (Fundamental) Fairness by its own bylaws,

	 ICANN's decision making process should be transparent (ie the
	 reasonable aspect of "fair and reasonable"


	 IRP is arbitration, no matter what ICANN calls it,

	 Arbitration can review de-novo,

	 Arbitration decision can be binding on ICANN (if Californian Law
	 prevented bindingness, I am sure the court would have observed
	 this)

There may be more, but this was just a first reading during my lunch break, so the lawyers on the group should have a detailed go at it.

greetings, el

-- 
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