[Gnso-newgtld-wg] Appeals Standard of Review

Steve Chan steve.chan at icann.org
Wed Oct 16 20:14:42 UTC 2019


Dear Jamie, Jim, all,

 

The vendor selection process was subject to an open, competitive bidding process. You can find a timeline of events, including the initial publication of the call for Expressions of Interest (EOIs), the list of respondents, and the ultimate selection of evaluation panels here: https://newgtlds.icann.org/en/about/evaluation-panels-selection-process

 

The EOIs lay out the subject areas that interested parties were required to respond against.

 

Best,

Steve

 

 

 

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> on behalf of Jamie Baxter <jamie at dotgay.com>
Date: Wednesday, October 16, 2019 at 12:29 PM
To: Jim Prendergast <jim at GALWAYSG.COM>, Jeff Neuman <jeff.neuman at comlaude.com>, "gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review

 

I too would appreciate knowing the answers to Jim's questions below.

 

As raised on a prior call discussing who covers the cost of appeals, I think there is value in understanding ICANN's current practice and/or policy with handling additional evaluator/panelist expenses that come from applicants prevailing in accountability mechanisms. For example, who was responsible for the expenses behind the EIU conducting the 2nd CPE on .GAY when the Board confirmed the EIU's panelists/evaluators did not follow proper procedure? 

 

I would assume that some type of policy exists as part of the contract with the service providers, given that the service providers much be informed about the accountability mechanisms they may be subject to.

 

Jamie

-------- Original Message --------
Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review
From: Jim Prendergast <jim at GALWAYSG.COM>
Date: Tue, October 15, 2019 4:39 pm
To: Jeff Neuman <jeff.neuman at comlaude.com>, "gnso-newgtld-wg at icann.org"
<gnso-newgtld-wg at icann.org>

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.”

 
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.
 
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:

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


 

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