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

[Alejandro Pisanty <apisan@xxxxxxx>]

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.
Yours,

Alejandro Pisanty