[WP2] [independent review] Independent Review

[Paul Rosenzweig]

I had thought this was already included -- if not, it should be.  The IRPs
mandate is

Board/Staff violates bylaws
Board/Staff violate established policy (including spending beyond approved
budget)
Board/Staff don't follow established process
Board/Staff make substantive decision that is "clearly erroneous" or
"contrary to the substantial weight of evidence" or some similar phrase that
gives the Board due deference

P

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
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M: +1 (202) 329-9650
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Skype: paul.rosenzweig1066


-----Original Message-----
From: Malcolm Hutty [mailto:malcolm at linx.net] 
Sent: Saturday, April 18, 2015 6:04 AM
To: Robin Gross
Cc: wp2 at icann.org; wp2-independentreview at icann.org
Subject: Re: [WP2] [independent review] Independent Review



On 17/04/2015 21:24, Robin Gross wrote:
> Thanks, Becky, for this great work!  I've got a few comments on this 
> morning's draft document.
> 
> We may want to explicitly expand the scope of what issues are 
> reviewable beyond only concerns of "mission creep" and include also 
> issues where the board/staff has violated established ICANN policies.

+1


> I very much like David's suggestion that we tie IRP reform to DIDP and 
> the need to get access to documents.  I want to add this DIDP 
> suggestion into the template for reconsideration request reform also.

+1


> I also support the suggestion that IRP ruling be not an 
> always-automatically-the-law-of-the-land and we need some kind of 
> "fail safe" to protect us in case the IRP got it wrong.  Possibly a 
> final check by the community combined with a board decision might be 
> an appropriate time to trump a ruling of the IRP panel?  In any event, 
> a "fail safe" needs discussion and to be thought through more by the 
> community.

There needs to be a final decisionmaker somewhere. I strongly disagree with
any suggestion that that should lie with the Board, even following some
further community process.

If you're worried that the IRP might simply "get it wrong", then create a
normal appeals process. A single-person or three-person IRP panel being
subject to appeal to a "full court" three-person or seven-person panel is
perfectly commonplace for judicial systems, although we'd then also need
means for deciding when leave to appeal should be granted or withheld.

Previously some people objected to an appeals process as overengineering the
solution. But it seems to me the proper solution to your concern. It would
also help with the question of how to create a body of precedent, while
avoiding having one unfortunate ruling create deeply embedded problems.

Allowing the Board the ultimate power to decide that, in their opinion, the
IRP simply "got it wrong" would in my view fatally undermine the whole
exercise. I'm not much more enamoured of resting on a community process
either, even if it could be divorced from Board
control: the complaint to the IRP may very well be against something solidly
backed by the community, but still inconsistent with scope or bylaws
commitments.



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