5. Appeals Mechanisms - my proposals of modification within the text in red

["Mazzone, Giacomo" <mazzone@xxxxxx>]

5. Appeals Mechanisms
5.1 Independent Review Process Enhancement
Introduction
The consultation process undertaken by ICANN produced numerous comments calling
for overhaul and reform of ICANN's existing Independent Review Process (IRP).
Commenters called for ICANN to be held to a substantive standard of behavior 
rather
than just an evaluation of whether or not its action was taken in good faith. 
Commenters
called for a process that was binding rather than merely advisory. Commenters 
also
strongly urged that the IRP be accessible, both financially and from a standing
perspective, transparent, efficient, and that it be designed to produce 
consistent and
coherent results that will serve as a guide for future actions.
Comments from Public Consultation
Commenters expressed support for the general idea of strengthening ICANN's
Independent Review process; none expressed a contrary view. The Board declined 
to
comment on the grounds that it could not respond to the IRP proposal without 
more
detail. Regarding the overall structure of the IRP, two commenters urged that 
it "has to
remain an internal mechanism within ICANN," i.e. that it not be designed as a 
"traditional
court of international arbitration" or "international commercial arbitration 
panel." The
CCWG-Accountability revised the text from the Initial Draft Report (4 May 2015) 
based
on community input and further discussions.
The process described below calls for a standing, independent panel of skilled
jurists/arbitrators who are retained by ICANN and can be called upon over time 
and
across issues to resolve disputes regarding whether ICANN is staying within its 
limited
technical Mission and acting in accordance with ICANN's Articles of 
Incorporation and/or
Bylaws.
The proposal calls for a fully independent judicial/arbitral function. The 
purpose of a
standing panel is to ensure that panelists are not beholden to ICANN or any of 
its
constituent bodies - but a core skill of this IRP's panelists is the need to 
build a thorough
and detailed understanding of how ICANN's Mission is implemented, and its
commitments and values applied - over time and across a variety of situations.
The proposal does not establish a new international court or a new body of 
international
law: it is not a Treaty function, and is internal to ICANN. It reviews 
application of rules for
ICANN established by the ICANN multistakeholder community. Those rules remain
under the control of the ICANN multistakeholder community, so this IRP remains a
mechanism the community is using to ensure that its policies and processes are
followed, and does not become a means to replace or subordinate the 
multistakeholder
community to some other entity.
Implementation of these enhancements will necessarily require additional, 
detailed work.
Detailed rules for the implementation of the IRP (such as rules of procedure) 
are to be
created by the ICANN community through a Cross Community Working Group (assisted
by counsel, appropriate experts, and the Standing Panel when confirmed), and 
approved
by the Board, such approval not to be unreasonably withheld. They may be 
updated in
the light of further experience by the same process, if required. In addition, 
to ensure that
the IRP functions as intended, we propose to subject the IRP to periodic 
community
review.
1. Purpose of the IRP: The overall purpose is to ensure that ICANN does not
exceed the scope of its limited technical Mission and complies with its Articles
of Incorporation and Bylaws.
a) Empower the community and affected individuals/entities to prevent
"mission creep" enforce compliance with the Articles and Bylaws
through meaningful, affordable, accessible expert review of ICANN
actions.
b) Ensure that ICANN is accountable to the community and
individuals/entities for actions outside its Mission or that violate its
Articles or Bylaws.
c) Reduce disputes going forward by creating precedent to guide and
inform ICANN Board, staff, SOs and ACs, and the community in
connection with policy development and implementation.
d) Protect the public interest and the interest of the weaker parts of the
community, against any abuse or misconduct by the Board.
2. Role of the IRP: The role of the Independent Review Process (IRP) will be
to:
a) Hear and resolve claims that ICANN through its Board of Directors or
staff has acted (or has failed to act in violation of its Articles of
Incorporation or Bylaws (including any violation of the Bylaws
resulting from action taken in response to advice/input from any
Advisory Committee or Supporting Organization);
b) Reconcile conflicting decisions of process-specific "expert panels";
and
c) Hear and resolve claims involving rights of the Sole Member under the
Articles or Bylaws (subject to voting thresholds).
3. A Standing Panel: The IRP should have a standing judicial/arbitral panel
tasked with reviewing and acting on complaints brought by individuals,
entities, and/or the community who have been materially harmed by ICANN's
action or inaction in violation of the Articles of Incorporation and/or Bylaws.
4. Initiation of an IRP: An aggrieved party would trigger the IRP by filing a
complaint with the panel alleging that a specified action or inaction is in
violation of ICANN's Articles of Incorporation and/or Bylaws. Matters
specifically reserved to the Sole Member of ICANN in the Articles or Bylaws
would also be subject to IRP review.
In case third parties are involved or could be affected by the results of the 
IRP,
they need to be informed from the very early stage and involved in the process,
at no extra cost.
If the contested issue could have as final outcome only a responsibility of the
Board, any decisions affecting third parties could not be put on-hold until the 
IRP
Process will be over.
5. Possible Outcomes of the IRP: An IRP will result in a declaration that an
action/failure to act complied or did not comply with ICANN's Articles of
Incorporation and/or Bylaws. To the extent permitted by law, IRP decisions
should be binding on ICANN.
a) Decisions of a three-member decisional panel will be appealable to
the full IRP Panel sitting en banc, based on a clear error of judgment
or the application of an incorrect legal standard. The standard may be
revised or supplemented via the IRP Sub Group process.
b) This balance between the limited right of appeal and the limitation to
the type of decision made is intended to mitigate the potential effect
that one key decision of the panel might have on several third parties,
and to avoid an outcome that would force the Board to violate its
fiduciary duties.
c) The limited right to appeal is further balanced by the community
powers, relevant policy development process, and advice from ACs,
each as set forth in the Bylaws.
d) IRP panelists will consider and may rely on prior decisions of other
IRPs addressing similar issues.
e) Interim (prospective, interlocutory, injunctive, status quo preservation)
relief will be available in advance of Board/management/staff action
where a complainant can demonstrate:
i. Harm that cannot be cured once a decision has been taken or
for which there is no adequate remedy once a decision has
been taken;
ii. Either (a) a likelihood of success on the merits or (b)
sufficiently serious questions going to the merits; and
iii. A balance of hardships tipping decidedly toward the party
seeking the relief.
6. Standing: Any person/group/entity "materially affected" by an ICANN action
or inaction in violation of ICANN's Articles of Incorporation and/or Bylaws
shall have the right to file a complaint under the IRP and seek redress. They
must do so within [number of days to be determined by IRP Sub Group] days
of becoming aware of the alleged violation and how it allegedly affects them.
The Sole Member has standing to bring claims involving its rights under the
Articles and Bylaws. Issues relating to joinder and intervention will be
determined by the IRP Sub Group, assisted by experts and the initial
Standing Panel, based on consultation with the community.
To prevent the abuse or misuse of this tool, each subject (or group of subjects
controlled by the same economic interests) cannot apply for more than one IRP
at the time. Only once first IRP judgement has been delivered, could eventually
apply for a new one.
7. Community IRP: The CCWG-Accountability recommends giving the
community the right to have standing with the IRP. In such cases, ICANN will
bear the costs associated with the Standing Panel, although the IRP Sub
Group may recommend filing or other fees to the extent necessary to prevent
abuse of the process. Third parties eventually concerned or affected by the IRP
potential decision, have to be informed of the process since the very first step
and have the right to ask to be associated to the process in a formal and 
regular
way at no costs.
8. Exclusions; ccTLD Delegation/Redelegation: In their letter dated 15 April
2015, the CWG-Stewardship indicated that, "any appeal mechanism
developed by the CCWG-Accountability should not cover ccTLD
delegation/re-delegation issues as these are expected to be developed by the
ccTLD community through the appropriate processes". As requested by the
CWG-Stewardship, decisions regarding ccTLD delegations or revocations
would be excluded from standing, until the ccTLD community, in coordination
with other parties, has developed relevant appeals mechanisms.
[this request cannot be accepted, because the ccTLD Community currently is
lacking of the component of the Community applications. All community applicants
(those selected after the CPE process) are today de facto excluded by the ccTLD 
Community exactly because of the abuse or misuse of the IRP mechanism. Unless 
this problem will be removed, there is a high risk that public interest will 
not be sufficiently considered by the current representation of ccTLD within 
ICANN]
9. Exclusions; Numbering Resources: The Address Supporting Organization
has likewise indicated that disputes related to Internet number resources
should be out of scope for the IRP. As requested by the ASO, decisions
regarding numbering resources would be excluded from standing.
10. Standard of Review: The IRP Panel, with respect to a particular IRP, shall
decide the issue(s) presented based on their own independent interpretation
of the ICANN Articles and Bylaws in the context of applicable governing law.
The standard of review shall be an objective examination as to whether the
complained-of action exceeds the scope of ICANN's Mission and/or violates
ICANN's Articles and Bylaws. Decisions will be based on each IRP panelist's
assessment of the merits of the claimant's case. The panel may undertake a
de novo review of the case, make findings of fact, and issue decisions based
on those facts.
11. Composition of Panel and Expertise: Significant legal expertise,
particularly international law, corporate governance, and judicial
systems/dispute resolution/arbitration. Panelists should also possess
expertise, developed over time, about the DNS and ICANN's policies,
practices, and procedures. At a minimum, panelists should receive training
on the workings and management of the domain name system. Panelists
must have access to skilled technical experts upon request. In addition to
legal expertise and a strong understanding of the DNS, panelists may
confront issues where highly technical, civil society, business, diplomatic, and
regulatory skills are needed. To the extent that individual panelists have one
or more of these areas of expertise, the process must ensure that this
expertise is available upon request.
12. Diversity: English as primary working language with provision of translation
services for claimants as needed. Reasonable efforts will be taken to achieve
cultural, linguistic, gender, and legal tradition diversity, with an 
aspirational
cap on number of panelists from any single region (based on the number of
members of the Standing Panel as a whole).
ICANN will establish appropriate measures to allow public interests groups
(such as community and geo TLDs and others) or community members based
in LDC to apply for or to counter IRP that they believe could be relevant for 
the
interests they represent.
13. Size of Panel:
a) Standing Panel - a minimum of 7 panelists
b) Decisional Panel - 3 panelists
14. Independence: Members must be independent of ICANN, including ICANN
SOs and ACs. Members should be compensated at a rate that cannot
decline during their fixed term; no removal except for specified cause
(corruption, misuse of position for personal use, etc.) To ensure
independence, term limits should apply (5 years, no renewal), and post-term
appointment to Board, NomCom, or other positions within ICANN would be
prohibited for a specified equivalent time period. Panelists will have an 
ongoing
obligation to disclose any material relationship with ICANN, SOs and ACs, or
any other party in an IRP.
a) Selection and Appointment: The selection of panelists would follow a 4-
step process: ICANN, in consultation with the community, will initiate a
tender process for an organization to provide administrative support for
IRP, beginning by consulting the community on a draft tender
document.
b) ICANN will then issue a call for expressions of interest from potential
panelists; work with the community and Board to identify and solicit
applications from well-qualified candidates representing all components of the
Internet community with the goal of securing
diversity; conduct an initial review and vetting of applications; and work
with ICANN and community to develop operational rules for IRP.
c) The community would nominate a slate of proposed panel members.
d) Final selection is subject to ICANN Board confirmation.
15. Recall or Other Accountability: Appointments made for a fixed term of five
(5) years with no removal except for specified cause (corruption, misuse of
position for personal use, etc.). The recall process will be developed via the
IRP Sub Group.
16. Settlement Efforts:
a) Reasonable efforts, as specified in a published policy, must be made to
resolve disputes informally prior to/in connection with filing an IRP case.
b) Parties to cooperatively engage informally, but either party may inject
independent dispute resolution facilitator (mediator) after initial CEP
meeting. Either party can terminate informal dispute resolution efforts
(Cooperative Engagement Process or mediation) if, after specified
period, that party's concludes in good faith that further efforts are
unlikely to produce agreement.
CEP process has to be fully transparent and eventual third parties affected
by the final judgement of the IRP or by the transitory measures taken in view
of the IRP, need to be immediately informed and consulted. In case the
terms currently forecasted for the maximum expected duration of the CEP would
not be respected, ICANN needs to motivate the decision of the extension of
the CEP duration and the general interest reasons that could explain such delay.
In case of misuse of the CEP duration and of obstructive techniques applied
by the recurrent part, ICANN needs to give official and public warning.
c) The process must be governed by clearly understood and pre-published
rules applicable to both parties and be subject to strict time limits. In
particular, the CCWG-Accountability will review the Cooperative
Engagement Process as part of Work Stream 2.
17. Decision Making:
a) In each case, a 3-member panel will be drawn from the Standing Panel.
Each party will select one panelist, and those panelists will select the
third. We anticipate that the Standing Panel would draft, issue for
comment, and revise procedural rules. Focus on streamlined, simplified
processes with rules that are easy to understand and follow.
b) Panel decisions will be based on each IRP panelist's assessment of the
merits of the claimant's case. The panel may undertake a de novo
review of the case, make findings of fact, and issue decisions based on
those facts. All decisions will be documented and made public and will
reflect a well-reasoned application of the standard to be applied.
18. Decisions:
During the whole process, third parties eventually concerned need to be informed
and consulted, in order to express their view.
a) Panel decisions would be determined by a simple majority.
Alternatively, this could be included in the category of procedures that
the IRP Panel itself should be empowered to set.
b) The CCWG-Accountability recommends that IRP decisions be
"precedential" - meaning, that panelists should consider and may rely
on prior decisions. By conferring precedential weight on panel
decisions, the IRP can provide guidance for future actions and inaction
by ICANN decision-makers, which is valuable. It also reduces the
chances of inconsistent treatment of one claimant or another, based on
the specific individuals making up the decisional panel in particular
cases. In this sense also the track records of claimants need to be taken in
consideration by the panel, to identify those that are abusing of such
process just to delay the access of other subjects into the ICANN community
or for any private interest.
c) The CCWG-Accountability intends that if the Panel determines that an
action or inaction by the Board or staff is in violation of the Articles or
Bylaws, that decision is binding and the Board and staff shall be
directed to take appropriate action to remedy the breach. However, the
Panel shall not replace the Board's fiduciary judgment with its own
judgment.
d) It is intended that judgments of a decisional panel or the Standing Panel
would be enforceable in the court of the U.S. and other countries that
accept international arbitration results.
19. Accessibility and Cost:
a) The CCWG-Accountability recommends that ICANN would bear all the
administrative the costs of maintaining the system (including Panelist
salaries), while each party should bear the costs of their own legal
advice. The Panel may provide for loser pays/fee shifting in the event it
identifies a challenge or defense as frivolous or abusive. ICANN should
seek to establish access, for example by access to pro bono
representation for community, non-profit complainants and other
complainants that would otherwise be excluded form utilizing the
process.
b) The Panel should complete work expeditiously; issuing a scheduling
order early in the process, and in the ordinary course should issue
decisions within a standard time frame (six months). The Panel will
issue an update and estimated completion schedule in the event it is
unable to complete its work within that period.
20. Implementation: The CCWG-Accountability proposes that the revised IRP
provisions be adopted as Fundamental Bylaws. Implementation of these
enhancements will necessarily require additional, detailed work. Detailed
rules for the implementation of the IRP (such as rules of procedure) are to be
created by the ICANN community through a CCWG-Accountability (assisted
by counsel, appropriate experts, winning parties involved in some IRP cases of
the last years,and the Standing Panel when confirmed),
and approved by the Board, such approval not to be unreasonably withheld.
They may be updated in the light of further experience by the same process,
if required. In addition, to ensure that the IRP functions as intended, we
propose to subject the IRP to periodic community review.
21. Transparency: The community has expressed concerns regarding the
ICANN document/information access policy and implementation. Free
access to relevant information is an essential element of a robust
independent review process, in all phases of the process, CPE included.
We recommend reviewing and enhancing the Documentary Information Disclosure 
Policy (DIDP) as part of the accountability enhancements in Work Stream 2.

Giacomo MAZZONE
WBU c/o EBU-UER
head of institutional relations - responsable des relations institutionnelles
17/a l'ancienne route
Grand Saconnex - 1218
Geneva - Geneve
Suisse - Switzerland
tel. +41 (0)22 7172013
fax +41 (0)22 7474013

------------------------------------------------------------------------------

**************************************************
This email and any files transmitted with it are confidential and intended 
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error, please notify the system manager. 
This footnote also confirms that this email message has been swept by the 
mailgateway
**************************************************