[Ccpdp-rm] NOTES | ccPDP3 Review Mechanism | 23 February 2022 (20:00 UTC)

[Joke Braeken]

NOTES | ccPDP3 Review Mechanism |  23 February 2022 (20:00 UTC)

1.  Welcome

Welcome by Stephen Deerhake, WG Chair
Nick: not just Review Mechanism

2.  Administrative matters

ccNSO and GAC | 8 March 1300-1400 UTC
Bart: not just Council and GAC, but full ccNSO

ccPDP3-RET. Policy is awaiting Board action. Board put together an ad hoc group to study the policy. The group will put forward the recommendation for board action
Patricio: correct. The ad hoc group has been approved by the governance committee. Call for EoI, with deadline today. First meeting (incl Katrina and Patricio) soon.
No estimate regarding timing. GAC had no objections. To look into the comments. Nothing that should pose a problem. Hope to finish pretty soon.

3. Action items

4.  comparing IFO Mediation and Non-binding Review

4.1. Presentation

Bart: presentation, with table displayed in zoom room
4 columns

  *   topics

  *   Complaint procedure / escalation process iana naming function contract
  *   Mediation / iana naming function contract
  *   WG non-binding review process
rows

  *   Prerequisite condition
  *   Matter that is subject to process
  *   “Standing”: who may launch the process?
  *   Goal
  *   Aspired result
  *   Publication of outcome
  *   Panel
  *   Role of panel
  *   Qualifications panelist
  *   procedures

Summary comparison of IFO mediation vs ccNSO-RET proposed review. Bernie talks to a new table, displayed in zoom room.
Binary outcome. You cannot partially delegate or retire a ccTLD. Once a decision has been taken, make sure there is fairness and all understand. Here we only talk about the decision itself
Patricio: info missing, in case people are confused. Make clear what the role of mediation was. Not convinced that mediation could not be helpful in case there is a binary outcome. Mediator could help both parties to see more clearly, or change their mind. Sequence
Bernie: not a reconsideration, but a complaint procedure
Bart: not referring to bylaw? Complaint procedure in the iana contract
Patricio: yes
Bart: general term. Not the specific reconsideration
Bernie: we have not considered what could be prerequisites for the review mechanism. We could add complaint procedure and mediation, as requirements beforehand. We have to see if we want to include them as prerequisites. They are there and people can use them
Eberhard: what’s in a name? If we have a process for independent non-binding review, do we need to design another one?
Stephen: tweak section 8. Essentially bylaw change
Eberhard: we must write a policy, not saying we must change the contract
Bart: does not understand. Mediation process is in iana naming function contract. That will always be available, what this group is on top of it.
Eberhard: 2 identical processes on top of each other. Does not want that
Bart: whatever the WG designs is on top of the mediation, unless you want to strike it from the contract
Eberhard: if it is good enough for us, we do not need to develop another procedure
Patricio: no need to change section 8. Already available to ccTLD managers. Stage where IFO looks again at the decision. What we are working on is a mechanism that could come after that. Where an external panelist or arbitrator would make a decision. Mechanism that is not available to ccTLDs, is not low cost.
Eberhard: it is not an internal mediator, and we are increasing the cost
Stephen: calls other WG members to comment
Eberhard: unnecessary cost. Duplication of efforts. Does it make sense to duplicate this mediation?
Stephen: not a simple duplication. The mediation section was written for TLDs that have contracts. (gTLDs mostly) We have different circumstances here
Patricio: does not see any duplication. Mediator does not take sides, or issues a ruling. No duplication.
Nick: big fan of mediation. To avoid legal costs. But the nature of mediation: both parties need to agree to the mediation. Independent viewpoint. Constructive resolution. Meditation is not suitable for finding a binding agreement
Bart: adding to what Nick said. Not included in this overview. If you are in a mediation process, the contract stipulates that if no amicable resolution is possible, the mediation stops. No further outcome. Even in non-binding, there will always be an outcome. If the parties cannot agree they resolved the issue, the process stops.
Eberhard: mediation is not cast in stone. We decide what the mediator needs to do. We need to look at this thoroughly.
Stephen: mediators do not take sides
Patricio: agrees

4.2. Discussion on how to proceed

Stephen: Should we continue with the RM? Are we happy with section 8 and stop there?
Bart: wait until icann legal gets back to the group with a response to the non-bindingness. That is the underlying issue we need to address
Stephen: add more questions to the list for icann legal? Applicability for ccTLDs of this newly discovered section? Seems to have been made for gTLDs.
Bernie: agrees with Bart. But, does not think we took it as far as we could. We have a few things resolved. Should we have return to it later, several sections still left, will be difficult. Go further with the review mechanism. Agrees with Bart to see where we end up with icann legal
Bart: Bernie, you have the experience. But also be careful not to beat it to death. We need an answer on the bindingness. And then consider further steps.
Bernie: if icann legal comes back to us tomorrow, we should consider that first.
Stephen agrees, Bart too.

5.  Next meetings

     23 March (ICANN73 7-10 March)

6.  AOB

none

7.  Closure

Thank you all



Joke Braeken
joke.braeken at icann.org

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