[council] RE:Board action on recommendation 6

Mary Wong MWong at piercelaw.edu
Fri Oct 8 20:14:56 UTC 2010

Speaking personally as a participant in the Rec 6 CWG, my puzzlement over the Board's resolution arose in relation to the language where it read "not inconsistent with the existing PROCESS" (emphasis added). 
Since the CWG was cognizant that its work should be within the framework of existing GNSO POLICY (i.e. Rec. 6 & related Principles etc.) - and I don't believe anything we recommended went outside of this policy framework - I read the Board language to mean, specifically, the objection process relating to MAPO issues as outlined in AGB v4.
It seemed to me that the main concern the Board had was what Bruce outlined in his email, viz. the manner in which the Board would ultimately discharge its responsibility for new gTLD decisions. The current AGB process outsources the objection process management and appointment of external experts to the Int'l Center for Expertise (ICE) of the ICC (which some members of the CWG disagreed with). In addition, within the CWG there was fairly extensive discussion over whether the experts appointed should recommend EITHER (1) only that the objection in question is well-founded in international law; or (2) go further and add a recommendation that, as a result of this finding, the string in question should NOT be approved by the Board.
The current AGB language on this specific question is not entirely clear, and can be read to indicate that the Board will, without more investigation/discussion, accept the decision of the experts as final. 
So when the resolution simply reads "not inconsistent with the existing process", I'd guess that many other members of the ICANN community (and not just me) would be concerned as to what the Board considers "process" in the AGB. If "process" simply means "we're going to stick with the ICC as service provider" and/or even "we think the experts should recommend the outcome (and not just the legal implications) of the application", that may be one thing; if, however, "process" was intended to mean also that the Board will accept, without further enquiry (e.g. obtaining a second expert opinion if warranted), the expert's advice, that could be more problematic.
In any event, though, and like Chuck, I don't personally believe any of the CWG recommendations were against either existing GNSO policy or AGB-recommended process - I think the recommendations sought to clarify existing ambiguities in the AGB instead.
Thanks and cheers
Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH 03301USAEmail: mary.wong at law.unh.eduPhone: 1-603-513-5143Webpage: http://www.law.unh.edu/marywong/index.phpSelected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584


From: "Tim Ruiz" <tim at godaddy.com>
To:<cgomes at verisign.com>
CC:<Bruce.Tonkin at melbourneit.com.au>, <owner-council at gnso.icann.org>, <council at gnso.icann.org>
Date: 10/8/2010 12:09 PM
Subject: RE: [council] RE:Board action on recommendation 6
Good point, that could get us all into a lengthy debate. So perhaps at
this point we just agree that AGv4 reflects current policy and anything
not consistent with that would not be implemented or would be referred
to Council for further consideration. 

I am encouraged by the Board's position on these remaining issues as it
appears they are saying we are at the deadline for considering changes
for the first round and work going forward will be focused on finalizing
the AG and getting resources in place and ready to go. 


> -------- Original Message --------
> Subject: RE: [council] RE:Board action on recommendation 6
> From: "Gomes, Chuck" 
> Date: Fri, October 08, 2010 7:56 am
> To: , "Bruce Tonkin"
> , 
> , "Council GNSO"
> Tim,
> What do you mean by 'current policy'? Do you mean the current version
> of the guidebook (AGv4)?
> Chuck
> > -----Original Message-----
> > From: owner-council at gnso.icann.org [mailto:owner-
> > council at gnso.icann.org] On Behalf Of tim at godaddy.com
> > Sent: Friday, October 08, 2010 8:47 AM
> > To: Bruce Tonkin; owner-council at gnso.icann.org; Council GNSO
> > Subject: Re: [council] RE:Board action on recommendation 6
> > 
> > 
> > Thank you Bruce. I took the Board's instructions regarding rec6 to
> mean
> > (or to also mean) those recs not inconsistent with the current policy.
> > 
> > Tim
> > 
> > -----Original Message-----
> > From: "Bruce Tonkin" 
> > Sender: owner-council at gnso.icann.org
> > Date: Fri, 8 Oct 2010 15:17:22
> > To: Council GNSO
> > Subject: [council] RE:Board action on recommendation 6
> > 
> > 
> > Hello All,
> > 
> > Reading the various discussions on the Council list, it appears that
> > the
> > GNSO believes that the Board dismissed or disagreed with the work from
> > the working group on recommendation 6.
> > 
> > The Board resolution stated;
> > 
> > "The Board acknowledges receipt of the Rec6CWG report. This is a
> > difficult issue, and the work of the community in developing these
> > recommendations is appreciated. The Board has discussed this important
> > issue for the past three years.
> > 
> > The Board agrees that ultimate responsibility for the new gTLD program
> > rests with the Board. The Board, however, wishes to rely on the
> > determinations of experts regarding these issues.
> > 
> > The Board will accept the Rec6 CWG recommendations that are not
> > inconsistent with the existing process, as this can be achieved before
> > the opening of the first gTLD application round, and will work to
> > resolve any inconsistencies. Staff will consult with the Board for
> > further guidance as required."
> > 
> > 
> > I interpreted that as saying that the Board broadly agreed with the
> > direction of most of the recommendations from the working group. The
> > outcomes of which will be seen in the next draft of the guidebook.
> e.g
> > no longer using the term MAPO.
> > 
> > The only clear disagreement was using the Board of 21 people to
> > directly
> > try to interpret international law and act as some form of dispute
> > panel
> > on matters relating to recommendation 6. Most of the Board, including
> > me, has no such legal training that would be needed to do that. The
> > Board is not the supreme court. Instead we prefer to use a panel of
> > experts (e.g judges) that are familiar with international law to reach
> > a
> > judgement. Ultimately the Board can over-rule that judgement as a
> last
> > resort (and there are various mechanisms of appeal available for this
> -
> > such as reconsideration requests, IRP panels etc).
> > 
> > Anyway I would be interested to hear how the GNSO has interpreted the
> > Board resolution so that misunderstandings can be cleared up.
> > 
> > In terms of any special papers - from my recollection we only had the
> > GNSO paper to read. So you already have the document that we relied
> > on.
> > 
> > Regards,
> > Bruce Tonkin
> > 
> > 
> > 
> > 
> > 
> >

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