[GNSO-PDP3Dot0-DT] Actions & Notes: PDP 3.0 Small Team Meeting 22 Oct

[Ariel Liang]

Dear All,

Please find below the action items and notes captured during the small team call on Tuesday, 22 October at 13:00 UTC.

Staff has posted to the wiki space the action items and notes. Please note that these are high-level notes and are not meant as a substitute for the recording and chat room records, which are posted on the wiki at: https://community.icann.org/x/vIEzBw

Best Regards,
Ariel

Ariel Xinyue Liang
GNSO Policy Support Specialist
Internet Corporation for Assigned Names and Numbers (ICANN)

==
ACTION ITEMS
- Small Team members to review the proposal for Improvement #9, focusing on Section 3.1.3, Section 3.4, Section 4, Section 5, and Section 6. Small Team to provide comments/input directly on the Google Doc: https://docs.google.com/document/d/1CDwJe7UroRNnou-VGwN6vMCRjVYFyi8RRNlWmtJDIP8/edit
- Staff to circulate the draft proposal with ICANN Legal, Ombudsman, and Conflict Resolution Specialist for feedback, and ask Ombudsman for average time to resolve disputes historically (if the information is known).
- Staff to develop guidance for improvement #15, including rationale for the change to the implementation plan, and circulate the draft with small team to review.

NOTES
1. Welcome and roll call

2. Note about an ad-hoc meeting with Brian Cute on Friday, 25 October
- It is an ad-hoc prep call so attendance is optional
- Call will be recorded and published on the Small Team wiki page

3a. Improvement #9
3.1.3 Complaint Committee, page 7-8
- When we looked at the IETF procedures, they had WG members involved in the dialogue. Not sure if this is appropriate for ICANN

3.4 External Legal Council
-  “If one party insists on legal representation, the GNSO Council, in consultation with the ICANN Org and Ombudsman, should consider whether there are ways, if any, to provide assistance to the other parties involved in the proceeding to ensure a level playing field.”  Not sure we can keep this in.  Not sure it is feasible.

4.2 Public Knowledge Among Other WG members
-  Need to get input on this point.

4.3 Timeliness of Submission
- Need guidance on how long this has been going on – if public knowledge for 2 months a complaint should be filed (adapted from the IETF).
- Remove reference to RFC.

4.4 Suggested Template and Questions
- Need to get input on this section.

4.5 Assessment of Complaint Submission
- Need to get input on this section.

Section 5.1:
- Focus on the proposed procedure. Not much guidance in the WG Guidelines.
- Provided two versions of the proceeding: 1) How it looks in “broad strokes” or high level.
- First when the complaint is submitted the WG leadership will try to resolve the dispute.
- If it cannot be resolved then any of the parties can bring it to the Council leadership, who will address it with the liaison and the Complaint Committee.
- If the Council cannot resolve it then the complainant is encouraged to engage the Ombudsman.  This is the final escalation step.
- We checked other organizations and found that IETF had a similar process, so we pulled the language from the IETF.  Process provides flexibility.  See last two paragraphs in section 5.1. Don’t put restrictions on when certain things need to be done.  Did not define what “reasonable” is or give it a fixed date.
- Question: Do we know how long it takes on average for the Ombudsman to resolve disputes?  ACTION: Staff can check if needed.
- As to whether a complaint is legitimate, it is the WG leadership’s job to do that, but if the people involved in the dispute disagree with the assessment, then the Council leadership and liaison will be involved.

Section 5.2:
- Example of a best practice.
- For each step we have some points of what needs to be done, for example to review a complaint to make sure it is acceptable. After the complaint is submitted we establish the Complaint Committee. A procedure to organize a dialogue. Budget time for the Complaint Committee to provide feedback.
- Section 5 – there is flexibility for how to use the Complaint Committee, but also best practices to show how the Complaint Committee could be involved – two points of involvement.

Section 5.3: Abusive Complaint
- What to do with abusive complaints and consequences.
- Question: Why is the penalty 5 years and not 3?  We welcome suggestions on timing.

Section 6: Preventative Measures
- We know that the 3.7 proceeding will impact the work of the WG.
- In everyone’s interest to prevent a proceeding from being undertaken.
- Look at the grounds that give rise to a 3.7 proceeding: 1) someone not performing their role per WG guidelines; 2) contributions being ignored or discounted; 3) appeal of a decision by the WG or Chartering Organization.
- Look at how we can prevent these grounds from resulting in a 3.7 proceeding.

6.1 Ways to help members, leaders, and liaisons perform their role in a WG:
6.2 Ways to prevent members’ contributions from being ignored or discounted:
6.3 Ways to prevent a decision from being appealed

Discussion:
- Called out the various improvements that apply in each section that can help to prevent a 3.7 proceeding.
- This is quite important to stress.  We want the escalation to Section 3.7 to be the last resort.
- Maybe include some text at the beginning of the document to explain the spirit of what we are trying to do here.
- What is the “ask” in the implementation plan for PDP 3.0?  It is just to make sure that the work of the WG is not delayed because of a Section 3.7 proceeding.  So we have a blank slate, such as to create a Complaint Committee.
- Question: Need to proceed with drafting the new 3.7 procedure text.  Have we discussed how that will be done?  Answer: That is the next step.  We have a placeholder section and staff can propose text and circulate with the Super Small Team first for feedback.
- Question: What is the weight of this #9 document – is it just a working document?  Answer: It would complement the WG Guidelines.  In the proposed new procedure text for Section 3.7 we would have a link to this document.
- Important to submit this document to ICANN Legal for review.  They can provide suggestions and advice, but they would not need to approve the document.  Other parties, such as the Ombudsman and Conflict Resolution Specialist, may have feedback.
- There is also new contents in the previous sections of the document to review.
- Question: Is it reasonable to say that we could finish this in November?  Answer: Staff thinks this is reasonable.
- Need Small Team members to review the document this week. Also have a working session in Montreal.
- Question: How should we handle amendments – Super Small Team and then Small Team, or just Small Team? Answer: Suggest Super Small Team to continue as that is more efficient.

3b. Improvement #15
- Not sure how feasible is for the Council to establish a panel of volunteer mediators that can be called upon when appropriate.
- Go back to the original objective of #15 in the implementation plan
- The first step in the implementation steps is about liaison’s role to proactively identify issues/challenges, which has already been completed via Improvement #5.
- In developing improvement #9, we have identified several resources, including the Ombudsman, Complaints Officer, Conflict Specialist, and ICANN Legal, and complaint committee.
- As guidance, briefly describe these resources, which already been laid out in Improvement #9. Can leverage the existing work and morph into a brief guideline for the Council to reference.
- Support using the resources we already have (not least because they know how ICANN works & won't charge us $$$)
- The thinking behind the conflict resolution specialist is to save money for hiring external resources
- Have explanatory note for what is our thinking and why we reached the conclusion that the best course of action is to rely on existing resources. It is the matter of transparency.
- The conflict situation is going to happen really rarely, we hope.
- To provide rationale for what has been changed in the implementation plan.
- ACTION ITEM: Staff to develop guidance for improvement #15, including rationale for the change to the implementation plan, and circulate the draft with small team to review.

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