[Gnso-newgtld-wg] Appeals Standard of Review

Tue Oct 15 20:39:47 UTC 2019

Jeff - on you recommendation - .  ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given.

Do we know what the screening process was last go around?  For example - how was the Economist Intelligence Unit selected?  Was there an RFP issued?  If so what were those terms?

CPE was a particularly painful exercise for more than a few applicants so yes - I'm sort of picking on that one but it would be illustrative to the others.  I do know there was a tender process for the Independent Objector.

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Jeff Neuman
Sent: Tuesday, October 15, 2019 9:25 AM
To: gnso-newgtld-wg at icann.org
Subject: [Gnso-newgtld-wg] Appeals Standard of Review

All,

One of the remaining topics for Appeals is to determine what the standard of review should be.  The choices discussed are "De Novo" or "Clearly Erroneous."

  1.  Under a "De Novo" standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel.  It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions.  It would be as if the appeals panel is hearing the facts for the first time.

  1.  Under a "Clearly Erroneous" standard of review, the appeals panel must accept the evaluator's or dispute panel's findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator's/dispute panel's decision will only be reversed if it is implausible in light of all the evidence.

In theory it could be possible to have different standards of review depending on what is the issue being appealed.  For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous.  As a reminder, here are the different types of appeals:

  1.  Evaluations
     *   Background Screening
     *   String Similarity
     *   DNS Stability
     *   Geographic Names
     *   Technical / Operational Evaluation
     *   Financial Evaluation
     *   Registry Services
     *   Applicant Support
     *   Community Priority Evaluation

  1.  Objections
     *   String Confusion
     *   Legal Rights Objection
     *   Limited Public Interest
     *   Community Objection
     *   Conflict of Interest of Panelists.

My personal recommendation is that all appeals except for the Conflict of Interest appeals have a "Clearly Erroneous" standard.   Conflict of Interests should be reviewed under a De Novo Standard.  To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications.  ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given.  But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made.

Thoughts?

Jeff Neuman
Senior Vice President

Com Laude | Valideus
1751 Pinnacle Drive
Suite 600, McLean
VA 22102, USA

M: +1.202.549.5079
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
www.comlaude.com<http://www.comlaude.com/>

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