[CPWG] Subsequent Procedures: ALAC's right and ability to file Objections to applications/applicants in new round, and Appeals against any decision not in favour of ALAC

Thu Oct 10 00:07:44 UTC 2019

Just to provide further context,

When we speak of "Accountability Mechanism" in SubPro, we are referring to
appeals mechanism essentially, and the idea of recommending the
establishment of a new appeals mechanism/layer, which would apply strictly
to any upcoming New gTLD Program round. Not to be confused with the
existing Accountability Mechanism under the ICANN Bylaws, yet considering
whether mechanisms like Request for Reconsideration and Independent Review
Panels would be applicable to decisions arising under the Program and under
what circumstances those would or would not be applicable.

I would prefer to keep the question of whether a new appeals mechanism is
desirable or not independent to the question of ALAC's right to file
Objections and Appeals. The Objections mechanism is still going to be
outsourced to third-party Dispute Resolution Service Providers (DRSP) for
the new round because of reliance on their expertise, while the right to
appeal will be likely involve such DRSP anyway.

*Now, addressing strictly what applies to ALAC/At-Large in respect of
Objections*,

1. In the 2012 round, there effectively wasn't any *substantive* appeal
mechanism available to ALAC (or any objector or applicant, for that matter)
to appeal against an unfavourable decision by a third-party Objection
DRSP.  Under the 2012 AGB, ALAC was able to file Limited Public Interest
Objections or Community Objections with funding provided by ICANN, and as
pointed out by Alan, Olivier and Cheryl at the CPWG call of 9 Oct, ALAC
filed 3 objections with respect to the .health string.

2. In the SubPro Initial Report of 3 July 2018, a question was posed to the
community.

*"*Q. 2.8.1.e.10  *ICANN agreed to fund any objections filed by the ALAC in
the 2012 round. Should this continue to be the case moving forward? Please
explain. If this does continue, should any limits be placed on such
funding, and if so what limits? Should ICANN continue to fund the ALAC or
any party to file objections on behalf of others?"*

In response, vide its Statement of 3 October 2018 (see:
https://community.icann.org/pages/viewpage.action?pageId=88573813), ALAC
said,

*"Yes, the ALAC believes strongly that ICANN should continue to fund all
objections filed by us in the future rounds. As ICANN’s primary
organisational constituency for the voice and concerns of the individual
Internet user, the ALAC bears a responsibility as an established
institution to pursue Limited Public Interest and/or Community objections
against applications for New gTLDs which it believes does not benefit
individual Internet end users as a whole.*

*The existing limits or conditions placed on funding for ALAC objection
filing and Dispute Resolution Procedure (DRP) costs already form an arduous
“stress test” to not only establish the validity of a contemplated
Community objection, but also support for it within At-Large.*

*However, for ALAC objections to have proper effect as intended in the AGB,
the ALAC proposes that guidance for DRSP panellists be substantial in
respect of adopting definitions of terms – such as “community” and “public
interest” – as well as questions on objector standing, in an effort to
limit the ‘damage’ resulting from panellists’ unfamiliarity with the ICANN
Community structure, divergent panellists’ views, even values, on the same,
and which conflict with the goals stated in ICANN’s Bylaws or GNSO
consensus policy."*

3. In the SubPro PDP WG deliberations of all public comments received to
the said Initial Report, questions again arose as to whether ALAC should
continue to fund objections to be filed by ALAC in subsequent procedure,
and if yes, to what extent. This is because there were public comments
which basically questioned why ALAC should have "special rights" (standing
versus funding) to file objections.

In my opinion, *the question of ALAC's standing should not be considered in
SubPro deliberations* -- that is a question for ALAC itself (considered
through ALAC's INTERNAL process for determining whether an objection should
be filed) and a question for the Objection DRSP (it has been the ground of
dismissal for ALAC's prior objections ie "ALAC having no standing to
object").

*On the question of funding, we now have a choice whether to reinforce the
ALAC statement (as presented above) or consider recanting ie giving up the
fight to keep the right to file objections in new rounds*.

*And addressing strictly what applies to ALAC/At-Large in respect of
Appeals*,

4. In the SubPro PDP WG deliberations a consequent question was raised in
mooting the recommendation for a new appeals mechanism -- if ICANN were to
fund objections to be filed by ALAC in the new round, should ICANN also
fund the costs of appeals to be filed by ALAC against any decision rendered
that was unfavourable to ALAC (on a loser-pay model)?

5. This is where the discussion in the CPWG call of 9 Oct has progressed
to.  I noted that there is support for the retention of right to file
objections which ought be accompanied by the right to file appeals.
Therefore, a draft position was presented and which I have now refined for
feedback / further refinement ...

*The ALAC has no funding ability beyond that supplied by ICANN. It is not
feasible for ALAC to raise funds to finance an appeal (or objection) or to
bear costs if its appeal is unsuccessful. Any withholding of ICANN funding
for ALAC to file objections and/or appeals would be tantamount to denying
ALAC the ability to fulfill its duty under the Bylaws as the** primary
organisational constituency for the voice and concerns of the individual
Internet user.  **As to quantum for or limits to such ICANN funding in
light of ICANN budgetary constraints, ALAC believes that it must
commensurate with number of applications received.*

6. An aside note -- the notion of appeals would also be available to appeal
against *evaluation* decisions, such as the ones made by panels for the
Applicant Support Program and CPE.

Apologies for the long email and thank you for your attention.

Justine
-----

On Thu, 10 Oct 2019 at 00:11, Alan Greenberg <alan.greenberg at mcgill.ca>
wrote:

> I would like to raise the issue of the ALAC ability to object to
> applications as well as its ability to appeal such judgements.
>
> In the last round, the ALAC filed three objections with one of them later
> being withdrawn. All were to *.health*.
>
> *I believe that the ALAC needs to formally determine if it wants such
> objection rights in future gTLD rounds*. If we do want that right, I
> believe that we also need the right to appeal and in both cases, if we are
> not funded by ICANN, then the right is meaningless.
>
> I do not have copies of the objections we filed, but for the two cases
> where there were judgements (against us), they can be found at:
>
>
> https://newgtlds.icann.org/sites/default/files/drsp/17jan14/determination-1-1-1489-82287-en.pdf
> ;
>
> https://newgtlds.icann.org/sites/default/files/drsp/17jan14/determination-1-1-1684-6394-en.pdf
> .
>
> I believe that the ALAC decsiion should be based on the past history and
> on whether we truly believe that we will allocate appropriate resources to
> such a future action.
>
> In aid of that, I suggest the CPWG, and more importantly the ALAC, be
> quickly briefed by Olivier (who as ALAC Chair was the point person in the
> earlier objections) on the history and efforts associated with the three
> .health objections.
>
> I may be on today's call but if so, only for part of it.
>
> Alan
>
> At 06/10/2019 11:00 AM, Justine Chew wrote:
>
> Dear all,
>
> Reference is made to the *SubPro Updates workspace*
> <https://community.icann.org/x/6a_jBg>.
>
> The Subsequent Procedures PDP WG has started deliberating on public
> comments received on the topic of Accountability Mechanism on 1 Oct 2019.
> Deliberations will continue on its next call on 7 Oct at 15:00 UTC.
>
> Here is an *update on the topic of Accountability Mechanism as at 5 Oct
> 2019*
> <https://community.icann.org/download/attachments/111390697/01.%20SubPro%20Accountability%20Mechanism%20%5BAppeals%5D%20as%20at%205.10.2019%20for%20CPWG.pdf?version=1&modificationDate=1570370108344&api=v2>.
>
>
> Please note that while "Accountability Mechanism" is better associated
> with mechanism per the Bylaws, namely Request for Reconsideration,
> Independent Review Process and ICANN Ombudsman, within the SubPro context,
> "Accountability Mechanism" is about appeals for the new gTLD Program --
> looking at rights and forms of appeals to decisions made during evaluation,
> objections, either by ICANN Org/Board, external evaluators, external third
> party Dispute Resolution Service Providers (DRSPs), as well as in respect
> of post-delegation dispute resolution procedures.
>
> CCT Recommendation #35 is picked up under this topic, specifically
> sub-recommendation (3) "*Introducing a post dispute resolution panel
> review mechanism*".
>
> As I alluded to at the CPWG call of 26 Sep under the topic of Objections,
> there were public comments which suggested that ALAC's ability to file
> Objections in subsequent procedures be explicitly limited on account of
> budgetary constraint.
>
> Along the same lines, a question was raised during the last SubPro WG call
> as to whether AC's should be funded by ICANN to file appeals. This is
> something which may require addressing either through a position relayed to
> SubPro WG momentarily and/or in any statement in response to the call for
> public comments to SubPro WG's final report in due course.
>
> On that note, I wish you a pleasant week ahead.
>
> Justine Chew
> -----
>
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