[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 16 April 2000 UTC

[Julie Hedlund]

Dear Working Group members,

Please see below the notes from the meeting on 16 April at 2000 UTC. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2020-04-16+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie

Notes and Action Items:

Actions:

Recommendation xx (rationale 3):
ACTION ITEM: Consider changing “In service of” to “For the sake of transparency” or other phrase.

Limited New gTLD Appeals Processes:
ACTION ITEM: Third Row -- Column C: Potential Affected Parties: remove brackets from “Members of the contention set, if applicable”
ACTION ITEM: Apply the concept to all of Column G: Who Bears the Costs? that unless there is a fundamental failure a typical win will not result in a refund.  The appeals fees should be modest and accessible.

Row 15 -- Community Priority Evaluation:
ACTION ITEM: Column E, Arbiter of Challenge: Change “Existing Evaluator Entity - Different individual Evaluator?” to “ultimate decision maker - Different ultimate decision maker”

Notes:

1. Updates to Statements of Interest: No updates provided.

2. Discussion of Final Report Topics: https://docs.google.com/document/d/1kUlmZH8nxWTgfcRluA5FxLheMm4XhhOwkRt7om52aQU/edit?usp=sharing

a. 2.8.2 Limited Appeal/Challenge Mechanism and Post-Delegation Dispute Resolution Procedures – page 77

Recommendation xx (rationale 3): In service of transparency, clear procedures and rules must be established for challenge/appeal processes as described in the Implementation Guidance below.

ACTION ITEM: Change “In service of” to “For the sake of transparency”.

Implementation Guidance xx (rationale 6): The Working Group’s guidance on the arbiter for each type of challenge/appeal is summarized here: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit#gid=0. In the case of challenges to evaluation decisions, the arbiter should typically be an individual from the existing evaluator entity who did not conduct the original evaluation. In the case of an appeal of an objection decision, the arbiter will typically be a panelist or multiple panelists from the entity that handled the original objection, but will not be the same panelist(s) that provided the original objection decision.

Discussion:
-- Object to the phrase “evaluator entity”.  ICANN shouldn’t delegate the evaluation of the the gTLD.
-- At least one of the reasons to have this appeal/challenge process is to ensure that where an entity makes a decision there is a path to seek reconsideration, rather than having to try to bring an acct mechanism against icann for an act of the entity
i.e we were recognising that there are entities and building in an improvement
why on earth wouldn't KPMG be able to assess financial matters?
-- I think that there have to be evaluation entities - e.g. WIPO - their procedures are widely respected.
-- Where ICANN has a financial interest they shouldn’t be the evaluator.  It ensures more objectivity.
-- It seems like a benefit and not a flaw to have these various third-parties performing the evaluations/dispute resolutions.  With appropriate oversight/transparency/appeals…which is what these recommendations/implementation guidance is intended to achieve
.
-- There is a lack of transparency, so no assurance of competence in the evaluations.
-- ICANN can take responsibility for the work done by third parties.

Limited New gTLD Appeals Processes: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit#gid=0

Discussion:
Second Row -- Column C: Potential Affected Parties Re: [- Members of the contention set, if applicable (suggestion from WG member)] -- this is in brackets.
-- Not sure when it would ever come up.
Third Row -- Column C: Potential Affected Parties Re: [- Members of the contention set, if applicable (suggestion from WG member)] [- Third parties (suggestion from WG members)]
-- Support for members of the contention set and also third parties from Paul McGrady.

ACTION ITEM: Third Row -- Column C: Potential Affected Parties: remove brackets from “Members of the contention set, if applicable”

First Row -- Background Screening -- Column G: Who Bears the Cost -- Applicant - Should there be a partial refund if Applicant wins?
-- Does the partial refund compound the "buddy down the hall" problem we already have?  Now the co-employee will not only have to say his colleague is wrong, but his company has to also pay?  Seems like that won't happen much.
-- The legal and technical work of these evaluations should be, as much as possible, pro bono.
-- This is an issue of oversight: It is not a simple question of correct or incorrect.  There are different judgements and ways of looking at things.  A partial refund would only come if something was sanctionable, not just being overruled.
-- We have an example from the Accountability Mechanism for a reconsideration request.  Similar to what we are talking about with the appeals process.  It was shown that the evaluators didn’t do their job the way that they were supposed to do it.  We are not sure who paid to do the second evaluation for the CPE.
-- Given there are still excess funds available from 2012, it seems possible that the cost has been absorbed in some way by ICANN with the excess funds.

-- If the appeal is won there shouldn’t be a refund unless there was a fundamental failure to apply the standards.
-- For the typical win/loss there should be no refund.
-- Access to a challenge or appeal (which is great) can easily become inaccessible due to costs.


ACTION ITEM: Apply the concept to all of Column G: Who Bears the Costs? that unless there is a fundamental failure a typical win will not result in a refund.  The appeals fees should be modest and accessible.


Row 4 -- String Similarity:
-- Question: Is there any sort of objective algorithm that they are supposed to use? Answer: No.  There is a test that they have used that is manual to weigh factors, not automated.
-- If there is a

Row 9 -- Geographic Names:
-- Question: What do we mean by “Designation as a geographic name”? Answer: It is shorthand; Should include “as prescribed by the AGB”-- one that would have other requirements associated with it.
-- Looking at the first outcome that might warrant challenge -- designation as a geographic name -- it is possible that an entity might not want that designation.  There may be third parties other than the applicant that might want to challenge that designation.
-- Question: Which evaluation challenge do you take up in the objection process if you object to the designation of a geographic name?  Answer: Not sure what objection they could use.
-- Question: What about something that hasn’t been designated a geographic name but someone other than the applicant wants it to be designated?

Row 15 -- Community Priority Evaluation:
-- Does this acknowledge that there is more transparency around the evaluators?  Don’t think that this text sufficiently addresses the CPE process -- it wasn’t an evaluator, there were two evaluators and they had a team.  There were layers of people involved none of which were known.  There needs to be more clarity on who is different if it is being challenged.
-- Who is it then? It needs to be someone other than the people involved in the evaluation?
-- Suggesting that we need to be clear because if there is a person overseeing the evaluators that isn’t taken off the case will there be undue influence.  Could the entire team be different?
-- Who needs to change -- the evaluators, the manager of the evaluators, the administrative support?
-- Could we say something like “the ultimate decision makers have to be different from the decision makers the first time”?  But we don’t know who the decision makers were.  But we have recommendations in the CPE section should ensure that we would know.
-- This is one of the reasons why we want to see more community participation in the selection of the evaluators.  We put that into the evaluation section.

ACTION ITEM: Column E, Arbiter of Challenge: Change “Existing Evaluator Entity - Different individual Evaluator?” to “ultimate decision maker - Different ultimate decision maker”.

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