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Comment on "Expert Recommended Improvements to ICANN's Accountability Structures"

  • To: <asep-recommendations@xxxxxxxxx>, <apisan@xxxxxxx>
  • Subject: Comment on "Expert Recommended Improvements to ICANN's Accountability Structures"
  • From: Alejandro Pisanty <apisan@xxxxxxx>
  • Date: Sat, 8 Dec 2012 11:26:31 -0600

To whom it may concern:

in response to the Expert Recommended Improvements to ICANN's Accountability Structures:

1. The Recommendations go a long way into establishing clear processes, placing the burden of the proof in complaints at the right place, and creating a commitment by all parties to the results of the processes they engage in.

2. If ICANN does follow the Recommendations it will be taking steps to establish the equivalent of a permanent judiciary power, with many components like the BGC, Omnibus Panel, etc. This is a momentous step. It may engender a new power structure within ICANN and there are incentives in the system which may make this power become entrenched.

While the RySG comment asks for more rotation in the integration of these judiciary instances and claims that enough legal knowledge, uncoupled from subject-matter knowledge, is enough to sit on them, the practice one can forecast is that previous experience in the panels will become an asset. All parties - ICANN and those contesting ICANN decisions - will have an interest in retaining people who have already acted in these decisions, for the sake of expediency, reducing the learning curve, and the consequent predictability of the decisions they arrive at.

This is to be kept in mind as the Board goes forward creating this new institutional space.

3. The proposed system does indeed carry the incentive the RySG comment proposes: less and less substantial subject-matter knowledge, more and more legal and procedural knowledge. This may be fundamentally wrong.

4. A look at how the Recommendations could be implemented - forms, timing, people, traceability, accountability, etc. suggests that a significant growth of bureaucracy can be forecasted. The complexity of all decisions, keeping track of conflicts of interest, and so on, may require more dedicated personnel, more legal advice in order to reduce post-hoc litigation, etc. Consequently also this set-up increases the risk aversion and with it will make ICANN look, yes, more fair, maybe, more predictable, but surely, more bureaucratic and slow. I hope that the Board finds a way to implement the positive aspects of the Recommendations without incurring in these higher costs for the organization.


Alejandro Pisanty

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