[council] ICM registry request for GNSO

Tim Ruiz tim at godaddy.com
Thu Apr 15 21:30:29 UTC 2010

The draft options document does raise serious questions. Should the
Board be able to pick and choose what it wants from the findings of the
IRP (majority findings, minority findings, or parts of either), or
should the decision be that it either accepts the findings of the Panel
or rejects them? If the Board agrees with the finding, should it be able
to decide to not act on those findings anyway (too much time has passed,
too much has changed, etc)?

It gets to the accountability and institutional confidence issues that
the community has been hounding on for years (and hopefully the first
AoC review team will finally resolve). If the Council should choose to
comment, I would prefer that the comment be focused on these higher
level issues and not the specifics of this particular case.

-------- Original Message --------
Subject: RE: [council] ICM registry request for GNSO
From: "Rosette, Kristina" <krosette at cov.com>
Date: Thu, April 15, 2010 3:56 pm
To: "Mary Wong" <MWong at piercelaw.edu>, "GNSO Council"
<council at gnso.icann.org>

To be clear, my reluctance has nothing to do with the TLD itself.  I
have nightmarish visions of the proverbial slippery slope where Council
becomes bombarded with requests for comment and/or intervention on a
multitude of issues.  Even if such requests came only from owners of new
gTLD applications that fail, it's still a potentially big pool.  
Mary, if you're suggesting that this may be an opportunity for Council
to issue a statement on when it will (or will not) comment, I'm all for

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org]
On Behalf Of Mary Wong
Sent: Thursday, April 15, 2010 4:50 PM
To: GNSO Council
Subject: Re: [council] ICM registry request for GNSO

I agree and also for the reasons outlined by Stephane. Personally I
think it probably not something the Council as a whole should comment
on, but it'd be remiss of us not to at least discuss it, with a view
toward figuring out whether or not there ought to be just such a public
statement on our part.
Mary W S Wong
Professor of Law & Chair, Graduate IP Programs
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
Email: mwong at piercelaw.edu
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network
(SSRN) at: http://ssrn.com/author=437584

From: William Drake <william.drake at graduateinstitute.ch>To:GNSO Council
<council at gnso.icann.org>Date: 4/14/2010 11:16 AMSubject: Re: [council]
ICM registry request for GNSO
I think we have to talk about it for the reasons Stéphane states. 
Which admittedly is probably easier for me to say since I didn't live
through it the last time around. 


On Apr 14, 2010, at 4:13 PM, Stéphane Van Gelder wrote:


I do think it's worth discussing if there is time during our next
meeting. If people echo's Kristina's desire not to go anywhere near
this, then that discussion will be short. But .XXX is a gTLD, it is
within the purview of the GNSO, and the case does raise several
procedural issues that I think lie at the core of ICANN's function (the
main one being, obviously, whether the independent review panel's
decisions actually mean anything).


Le 14 avr. 2010 à 15:54, Rosette, Kristina a écrit :

My only interest in discussing would be to say that I don't want to
touch this topic with a 10-foot-pole, but I suspect that's not what you
had in mind. 

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org]
On Behalf Of Gomes, Chuck
Sent: Wednesday, April 14, 2010 9:52 AM
To: Stéphane Van Gelder; GNSO Council
Subject: RE: [council] ICM registry request for GNSO 

If anyone would like to discuss this in our 21 April meeting, please say
so and I will add it under Any Other Business.

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org]
On Behalf Of Stéphane Van Gelder
Sent: Wednesday, April 14, 2010 6:46 AM
To: GNSO Council
Subject: [council] ICM registry request for GNSO 


Chuck and I were recently contacted by ICM Registry CEO Stuart Lawley.
Stuart asked us if the GNSO Council might be willing to make a comment
on the ICM process options (the comment period for that being currently

In response, I suggested that Stuart send us a draft of what kind of
comment he would like to ask the Council to make, so that we could all
at least consider it. Chuck explained to Stuart that the GNSO Council
does not frequently make comments on behalf of the GNSO in response to
ICANN comment periods, part of the reason for that being the difficulty
we sometimes have in reaching consensus on such comments within the
timeframe of an ICANN comment period.

Neither of us indicated to Stuart that there would be any GNSO Council
action following his request.

You will find below the exact transcript of the text that Stuart sent us
to forward to the Council in response to my suggestion. The idea being
that if Council is interested in discussing this, then the text may
serve as a starting point for that discussion.



We would ask the GNSo , or indeed and of its members, to consider
commenting to ICANN during the Public Comment Period that runs until May
10 on the Possible Process Options for ICM as outlined in the ICANN

Regardless of the nature of the sTLD we feel this is a watershed moment
for ICANN in terms of its Transparency and Accountability and would like
the Council to consider submitting a comment/statement along the lines

The GNSO urges ICANN to implement the findings of the Independent Review
Panel in ICM Registry v. ICANN without delay by finalizing a registry
agreement with ICM based on the rules established for the sTLD
applications submitted in March, 2004. 

The merits of the .xxx top level domain are no longer on the table: 
rather, the only question now before the ICANN Board is whether or not
it is prepared to respect the findings of a panel of independent judges
in accordance with a procedure established by the ICANN bylaws.  Those
findings are:

1.  That the ICANN Board determined on 1 June 2005 that the ICM Registry
application met the criteria established for the sTLD round opened on
December 15, 2003;

2. The Boards reconsideration of that finding was not consistent with
the application of neutral, objective and fair documented policy.

3.  That ICANN should have proceeded to negotiate a contract with ICM
Registry; and

Those findings are clear, and the path forward is plain:  The ICM
Registry’s application was submitted under the rules established by the
Board for the sTLD round based on extensive community input.  Having
determined that the ICM application satisfied the eligibility criteria
established for that round, all that remains is for ICANN to negotiate a
contract with ICM Registry based on the contractual arrangements adopted
for that round. 

Most of  the “options” provided by staff for responding to the IRP
declaration would apply new rules to ICM Registry.  There is no
principled basis for this approach, which would only compound the
violations already identified in the IRP declaration.  The Board should
reject those options, respect the judgment of the Independent Review
panel, and provide tangible proof of its willingness to be accountable
to the community it serves. 

William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
 Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch

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