[Gnso-newgtld-wg] Appeals Standard of Review
Justine Chew
justine.chew at gmail.com
Sun Oct 27 09:23:35 UTC 2019
In general, I am comfortable with the standard of review as proposed by
Jeff in his original email of 15 Oct i.e.:
*[Jeff's] 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.*
Should an appeals mechanism be proposed (and I can't see why it shouldn't
be) then part of implementation guidance should automatically include
within the RFP/candidate evaluation process, a review of any existing
appeals process & costs offered by a candidate (in addition to evaluation
or objection service); the rationale being that the ICANN Community is
entitled to know and assess if we can rely on a candidate to also handle
appeals without bias. Otherwise clearly, a different arbiter of appeal is
required.
Justine
-----
On Fri, 18 Oct 2019 at 00:52, Jamie Baxter <jamie at dotgay.com> wrote:
> Thanks Jeff
>
> I guess I missed the high level agreement discussion on successful appeals
> not being at the cost of the applicant. I certainly support that.
>
> I think the value in understanding who pays for appeal costs (ICANN or the
> service provider) when an applicant prevails is rooting in the transparency
> of the proceedings. Without having any details in place on how (and by
> whom) an appeal will be reviewed and accepted, it leaves concern on the
> table about who has influence on the quick look process and if that
> influence has financial interests in blocking appeals from moving forward.
>
> Perhaps my concerns could be eased as the quick look process is flushed
> out and it becomes crystal clear that ICANN has no involvement in deciding
> what appeals get accepted for further review.
>
> Jamie
>
>
> -------- Original Message --------
> Subject: RE: [Gnso-newgtld-wg] Appeals Standard of Review
> From: Jeff Neuman <jeff.neuman at comlaude.com>
> Date: Thu, October 17, 2019 11:54 am
> To: Jamie Baxter <jamie at dotgay.com>, Steve Chan <steve.chan at icann.org>,
> "gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
>
> Jamie,
>
> A couple of points:
>
>
> 1. I think at a high level the group agrees that an applicant who is
> successful in an appeal from an evaluation should not have to bear the
> costs of that appeal. How the appeals adjudicator is paid in such a case
> should not be our concern – meaning we should not dictate whether ICANN
> pays or the evaluator just eats the costs. We only need to recommend that
> the Applicant should not have to.
> 1. In the very few cases ICANN had to re-do an evaluation (less
> than we can count on one hand), either ICANN or the evaluator bore the
> cost. It is not important who bore the cost but just that the successful
> appellant did not.
> 2. If there is an appeals process, which for which I believe there is
> support, then the number of appeals and the costs of those appeals, I would
> argue would be directly correlated to the standard of review:
> 1. If we have a *De Novo* review, then the costs are likely to
> increase (as you are essentially re-doing the evaluation), and the success
> rate of appeals is likely to increase especially where reasonable minds can
> differ on an outcome. This could result in an overall increase in the
> costs of the New gTLD program for all of the applicants.
> 2. If we have a *clearly erroneous* standard, then there are likely
> to be less successful appeals (unless the evaluators are really
> incompetent), and therefore, ICANN bearing the costs of successful appeals
> (Or the evaluator bearing the costs), would generally not result in an
> overall increase of the costs of the program.
> 3. This brings me back to my original recommendation:
> 1. For all appeals (other than conflict of interest), we should
> only use the *clearly erroneous* standard.
> 2. For conflicts of interest appeals, which are very fact specific,
> it makes more sense to use a *do novo* standard.
>
> So, lets get some more comments on the Standard of Review.
>
> *Jeff Neuman*
> Senior Vice President
> *Com Laude | Valideus*
> D: +1.703.635.7514
> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf Of
> *Jamie Baxter
> *Sent:* Thursday, October 17, 2019 8:18 AM
> *To:* Steve Chan <steve.chan at icann.org>; gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Appeals Standard of Review
>
> Thanks Steve
>
> I do not see any detail in the RFP that responds to my question below. Can
> you please assist with informing the working group on what ICANN's current
> policy is on addressing evaluation costs resulting from applicants
> prevailing in accountability mechanisms, as outlined in my example.
>
> I believe this is important to understand as the group continues
> discussing how to handle costs related to the appeals process under
> consideration. I believe it provides valued insights on how
> evaluators/panels are held to account (if at all) according to the
> contracts ICANN has established with the service providers. Presumably
> ICANN has consider a contingency for when third party contractors make
> mistakes or don't follow ICANN policy.
>
> Thanks
> Jamie
>
> -------- Original Message --------
> Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review
> From: Steve Chan <steve.chan at icann.org>
> Date: Wed, October 16, 2019 4:14 pm
> To: Jamie Baxter <jamie at dotgay.com>, 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>
> 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.”
>
>
> 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*
>
>
> 1. Background Screening
> 2. String Similarity
> 3. DNS Stability
> 4. Geographic Names
> 5. Technical / Operational Evaluation
> 6. Financial Evaluation
> 7. Registry Services
> 8. Applicant Support
> 9. Community Priority Evaluation
>
>
>
> 1. *Objections*
>
>
> 1. String Confusion
> 2. Legal Rights Objection
> 3. Limited Public Interest
> 4. Community Objection
> 5. 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 <jeff.neuman at comlaude.com>*
> www.comlaude.com
>
>
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> email and attachments in your reply) and immediately and permanently delete
> it. Please note that the Com Laude Group does not accept any responsibility
> for viruses and it is your responsibility to scan or otherwise check this
> email and any attachments. The Com Laude Group does not accept liability
> for statements which are clearly the sender's own and not made on behalf of
> the group or one of its member entities. The Com Laude Group includes
> Nom-IQ Limited t/a Com Laude, a company registered in England and Wales
> with company number 5047655 and registered office at 28-30 Little Russell
> Street, London, WC1A 2HN England; Valideus Limited, a company registered in
> England and Wales with company number 06181291 and registered office at
> 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a
> company registered in Scotland with company number SC197176, having its
> registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF
> Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered
> at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan)
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> Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further
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