[independent review] Pulling A Review Panel Together

[James Gannon]

I think that the issue of jurisdiction is both one of the most important and the one that is going to be the hardest to define.
Without a solid scope of jurisdiction we will see the IRP not able to actually do any work of note (See the recent donuts case).

From: wp2-independentreview-bounces at icann.org [mailto:wp2-independentreview-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Tuesday, March 17, 2015 1:54 PM
To: wp2-independentreview at icann.org
Subject: [independent review] Pulling A Review Panel Together

Colleagues

I've been a bit silent the past few days watching as the various threads get mulled over and discussed.  I'd like to offer the following as an outline of a proposal.  The substantive choices are the ones I perceive as having been part of a general consensus, but I am more than happy to be corrected on that.  The subject heads are, I think, all of the essentials, but if there is something missing again, I would welcome that.  I have not cross-walked this against the recent assessment matrix.  Herewith, in summary, the substance of a reformed Independent Review Panel (IRP):

Panel composition:  5 experts  [COMMENT:  Could be 7]

Criteria for selection:  Learned in law; expertise and understanding of DNS/IANA functionality; geographic and substantive diversity; complete independence from ICANN [COMMENT:  I think this means, rightly, that nobody in the CCWG would be permitted to be selected]

Selection Methodology:  Nominated by the Board, in consultation with the CEO;  Confirmed by the "community"  [COMMENT:  Problem here - how approved; by whom?]

Term:  5 year terms, staggered.  Intitial terms to be 3-7 years [COMMENT:  My idea - so that we don't waste the first 2 years ... not essential].  IRP members may only be removed for good cause (e.g. corruption, bribery, undisclosed conflict of interest)

Jurisdiction:  Existing IRP jurisdiction over process in Board + Jurisdiction to hear any complaint that Board or Staff action violates substantive limitation of ICANN Bylaws/Mission/Compact

Enforcement:  Decisions are binding on all parties

Standing (who can initiate action):  Any aggrieved party.  Will definitely include:  All contracted parties; all ICANN organizations (GAC, AO etc.); all parties who allege a concrete "injury in fact" (that is monetary loss; domain loss; etc).  [COMMENT:  Also want to empower civil society NGOs but not sure how we can do this]

Standard of Proof:  IRP to find by preponderance of the evidence whether Board/Staff actions were improper procedurally or substantively ultravires  [COMMENT:  This has not been much discussed - my own thoughts here]

Costs:  ICANN to pay all costs of the bureaucracy with a fixed line item that may not be reduced and must be increased based on inflation.  ICANN to bear all costs for defending its own actions before the IRP  unless the IRP finds the complaint "frivolous, in bad faith, or vexatious."  Aggrieved parties to bear their own costs unless IRP deems ICANN action "without any colorable basis."   Filing fee (amount to be set by IRP) may be waived for good cause shown

Procedures:  IRP to set its own procedures for consideration.  Mandatory requirement for deicison to be rendered within 6 months.  [COMMENT:  Could be different time frame]

Cheers
Paul

Paul Rosenzweig
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