[CWG-Stewardship] [client com] Draft Comment Letter and Updated Bylaws Matrix

[Grace Abuhamad]

Hi Jonathan,

Jorge also had an issue with the Change Pro Redline document. I re-saved a
version and attached it here. This works for me. Please let me know if you
are still having trouble opening the document.

Grace

From:  <cwg-stewardship-bounces at icann.org> on behalf of Jonathan Robinson
<jrobinson at afilias.info>
Organization:  Afilias
Reply-To:  Jonathan Robinson <jrobinson at afilias.info>
Date:  Thursday, September 10, 2015 at 11:18 AM
To:  Lise Fuhr <lise.fuhr at difo.dk>, "cwg-stewardship at icann.org"
<cwg-stewardship at icann.org>
Subject:  Re: [CWG-Stewardship] [client com] Draft Comment Letter and
Updated Bylaws Matrix

I am unable to open the one document. Change pro redline PDF.
 
Anyone else having the same issue?
 
Thanks,
 
 
Jonathan
 

From: Lise Fuhr [mailto:lise.fuhr at difo.dk]
Sent: 09 September 2015 11:16
To: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] [client com] Draft Comment Letter and Updated
Bylaws Matrix
 
Dear all,
 
Here is the updated bylaws matrix and the draft to comment letter sent to
the client committee today from Sydley. Please read the email below and both
documents as preparation for item 3 and 4 on the agenda for the CWG meeting
tomorrow.
 
Best,
Lise
 

Fra:cwg-client-bounces at icann.org [mailto:cwg-client-bounces at icann.org] På
vegne af Flanagan, Sharon
Sendt: 9. september 2015 00:02
Til: Client Committee
Emne: [client com] Draft Comment Letter and Updated Bylaws Matrix
 
Dear All,
 
Attached please find:
 
1.  An updated ICANN bylaws matrix, clean and marked against the original
draft; and
 
2.  A draft comment letter from CWG to CCWG to the CCWG¹s 2nd draft
proposal. 
 
In addition, given the recent discussion on the appeals mechanism, we
thought it might be helpful to have all of the references to the appeals
mechanism from the final CWG proposal in one place (see below for those
excerpts).
 
Best regards,
Holly and Sharon
 
Extracts from Final CWG Proposal (June 11, 2015):
Para 106: 

The CWG-Stewardship proposal is significantly dependent and expressly
conditioned on the implementation of ICANN-level accountability mechanisms
by the Cross Community Working Group on Enhancing ICANN Accountability
(CCWG-Accountability) as described below. The co-chairs of the
CWG-Stewardship and the CCWG-Accountability have coordinated their efforts
and the CWG-Stewardship is confident that the CCWG-Accountability
recommendations, if implemented as envisaged, will meet the requirements
that the CWG-Stewardship has previously communicated to the CCWG. If any
element of these ICANN level accountability mechanisms is not implemented as
contemplated by the CWG-Stewardship proposal, this CWG-Stewardship proposal
will require revision. Specifically, the proposed legal structure and
overall CWG-Stewardship proposal requires ICANN accountability in the
following respects: Š

6. Appeal mechanism. An appeal mechanism, for example in the form of an
Independent Review Panel, for issues relating to the IANA functions. For
example, direct customers with non-remediated issues or matters referred by
ccNSO or GNSO after escalation by the CSC will have access to an Independent
Review Panel. The appeal mechanism will not cover issues relating to ccTLD
delegation and re-delegation, which mechanism is to be developed by the
ccTLD community post-transition.

 

Para 160:
The CWG-Stewardship recommends not including any appeal mechanism that would
apply to ccTLD delegations and redelegations in the IANA Stewardship
Transition proposal. For further information, see Annex O.
 
Para 194:
The CWG-Stewardship¹s proposed changes are to be implemented after NTIA
approval of the IANA Stewardship Transition plan. Some changes are ready to
be implemented, and others may require further assessment by the ICG as they
may affect and be of interest to other communities involved in the IANA
Stewardship Transition. For all changes, including changes that do not
require further assessment by the ICG, the community will work with ICANN in
implementation. The CWG-Stewardship expects that the following
implementation items could be completed in approximately three to four
months, in accordance with the advice of independent legal counsel: (1)
identifying the ICANN assets that relate to the IANA functions to be
assigned to PTI and assigning those assets to PTI pursuant to an assignment
agreement to be entered into between ICANN and PTI, (2) incorporating PTI
and drafting the PTI governance documents (i.e., articles of incorporation
and bylaws) and (3) drafting, negotiating and finalizing the ICANN-PTI
Contract.35 The CWG-Stewardship has attempted an initial list of elements
for implementation as follows: Š

·       Appeal mechanism: This have been requested of the
CCWG-Accountability as part of a key dependency with the CCWG-Accountability
as soon as their work is finalized.

 

Annex O: 
While the CWG-Stewardship¹s 1 December, 2014 draft proposal contained an
appeal mechanism that would have applied to ccTLD delegation and
redelegations, some question arose as to the level of support within the
ccTLD community on aspects of this proposal (see below). Design Team B was
formed to assess whether there might be sufficient consensus within the
ccTLD community on such an appeal mechanism. DT-B decided to undertake a
survey of the ccTLD community to assess this (see the survey and the results
summarized below). 

 

After informing the ccTLD community about the upcoming survey, it was sent
to the ŒccTLD World¹ list, the most comprehensive list of the managers of
the 248 ccTLDs on March 23, 2015 with responses accepted to 3 April 2015.
Overall, responses on behalf of just 28 managers were received (see below).
Such a low level of response was judged to be an insufficient basis to
provide a mandate for the inclusion of an appeal mechanism in the
CWG-Stewardship¹s proposal. While acknowledging the limitations of drawing
any conclusions from a survey with such a low response rate, it is
nevertheless worthwhile pointing out that these limited responses tended to
reinforce the overall recommendation.

 

While 93% of respondents (Q.1) believe there is a need for an appeal
mechanism, only 58% (Q.2) believe that it should be developed and introduced
now as part of the IANA Stewardship Transition and 73% (Q.3) agreed that it
should be developed and introduced after the IANA Stewardship Transition has
taken place. Questions designed to probe the level of consensus on the
parameters of such an appeal mechanism (see Q.5 ­ Q.9) elicited no consensus
suggesting that it would take considerable time for the ccTLD community to
come to a consensus view on the details of an appeal mechanism. Some 71% of
respondents (Q.3) indicated that they would not wish to see the design of
such a mechanism delay the finalization of the IANA Stewardship Transition.

 

Survey of ccTLD Managers on Need for Appeal Mechanism for ccTLD Delegations
and Redelegations 
On 1 December 2014, the Cross Community Working Group on NTIA Stewardship
Transition issued a draft proposal which contained a proposal for an
³independent appeals panel²:
³Independent Appeals Panel (IAP) - The CWG-Stewardship recommends that all
IANA actions which affect the Root Zone or Root Zone WHOIS database be
subject to an independent and binding appeals panel. The Appeals Mechanism
should also cover any policy implementation actions that affect the
execution of changes to the Root Zone File or Root Zone WHOIS and how
relevant policies are applied. This need not be a permanent body, but rather
could be handled the same way as commercial disputes are often resolved,
through the use of a binding arbitration process using an independent
arbitration organization (e.g., ICDR, ICC, AAA) or a standing list of
qualified people under rules promulgated by such an organization.²
There exists in the ccTLD community an apparent lack of consensus on the
question of the introduction of an Œappeals mechanism¹ in respect of ccTLD
delegations and redelegations.
 

At ICANN 51 in Los Angeles an overwhelming majority of ccTLD representatives
at the 15 October 2014 ccNSO meeting indicated their wish for an Œappeal
mechanism¹ as part of the IANA transition, though what was meant by Œan
appeal mechanism¹ was not defined. In a survey of all ccTLD managers
undertaken in November 2014, 94% of respondents agreed that Œif the IANA
operator does not perform well or abuses its position, the affected ccTLD
should have the opportunity to (have access to) an independent and binding
appeal process¹. The expression of need resulted in the appeal mechanism
proposal that the CWG-Stewardship released on 1 December 2014. The proposal
indicates that such a mechanism could be used in disputes over the
consistency of ccTLD delegation or redelegation decisions.

A survey was undertaken in January of this year of CWG-Stewardship members
and participants (this includes representation from many communities, not
just ccTLD managers) on many aspects of the CWG-Stewardship¹s 1 December
proposal. It found that 97% of respondents agreed that, ³ccTLD registry
operators should have standing to appeal delegation and re-delegation
decisions to which they are a party that they believe are contrary to
applicable laws and/or applicable approved ccTLD policy². However when
questions were posed about potential specific parameters of such an appeal
mechanism support for it was reduced. For example, only 54% of respondents
agreed that ³ccTLD registry operators should have standing to appeal
delegation and redelegation decisions to which they are a party that they
believe are contrary to applicable laws and/or applicable approved ccTLD
policy, even if the operator is not a party involved in the delegation or
redelegation². In addition, only 60% of respondents agreed that,
³Governments should have standing to appeal any ccTLD delegation or
redelegation decisions that they believe are contrary to applicable laws².

This information suggests that while there may be support for an appeal
mechanism in general, consensus may be difficult to achieve on some of the
important aspects of such a mechanism, including:

·       Who would Œhave standing¹ to appeal decisions,

·       What aspects of decisions might be subject to an appeal,

·       Whether the scope should be limited to determining whether the
process followed was complete and fair,

·       Whether the dispute resolution panel would have the authority to
substitute its own view on a delegation, for example, direct that the
incumbent manager be retained rather than a proposed new manager, or

·       Be limited to requiring that the delegation process be repeated.

 

As a consequence, this survey is intended to determine whether they might be
sufficient consensus within the ccTLD community as a whole to seek a binding
appeal mechanism and if so, whether this should be sought as part of the
IANA Stewardship Transition process. [The remainder of Annex O consists of
the survey.]

 
Annex I - IANA Customer Service Complaint Resolution Process for Naming
Related Functions:
Phase 2 (for IANA naming services only)

Para 381: Should the issue not be resolved after Phase 1 [Initial remedial
process for IANA naming functions], the following escalation mechanisms will
be made available to direct customers, the IFO and the ICANN Ombudsman: [FN
53] 

a) If issue is not addressed, the complainant (direct customer), IFO or the
ICANN Ombudsman may request mediation. [FN 54]

b) CSC is notified of the issue by complainant and/or the IANA Functions
Operator. CSC reviews to determine whether the issue is part of a persistent
performance issue and/or is an indication of a possible systemic problem. If
so, the CSC may seek remediation through the IANA Problem Resolution Process
(see Annex J). 

 

c) The complainant (direct customer) may initiate an Independent Review
Process or pursue other applicable legal recourses that may be available, if
the issue is not addressed.

 
[FN 53: Non-direct customers, including TLD organizations,that are of the
view that an issue has not been addressed through Phase 1 may escalate the
issue to the ICANN Ombudsman or via the applicable liaisons to the CSC to
Phase 2.]
[FN 54: The CWG-Stewardship recommends that as part of the implementation of
this proposal, ICANN Staff explore possible approaches with regards to
mediation such as, for example, Section 5.1 of the Base gTLD Registry
Agreement 
(https://www.icann.org/resources/pages/registries/registries-agreements-en).
]
 
Draft Proposed Term Sheet (Annex S):
ESCALATION MECHANISMS (IANA Customer Service Complaint Resolution Process)

 

·       Phase 1: If anyone experiences an issue with PTI¹s delivery of IANA
naming functions, the complainant can send an email to PTI, which will
escalate the complaint internally as required. This process is open to
anyone, including individuals, registries, ccTLD regional organizations and
ICANN SO/ACs. 

·       Phase 2: If the issue identified in Phase 1 is not addressed by PTI
to the reasonable satisfaction of the complainant, then complainants that
are direct customers only may request mediation. ICANN and CSC will be
notified of the issue and CSC will conduct a review to determine whether the
issue is part of a persistent performance issue or an indication of a
systemic problem. If so, the CSC may seek remediation through the Problem
Resolution Process described below. This process is only open to direct
customers. Non-direct customers, including TLD organizations, who have
issues unresolved in Phase 1, may escalate the issues to the ombudsman or
the applicable liaisons to the CSC.

·       The complainant may also initiate an Independent Review Process if
the issue is not addressed in the steps above.   [Note from Sidley:  We
believe this should reference ³direct customers.²]

 
 

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