Comments on Recommendation #7

[Kathryn Kleiman <kleiman@xxxxxxxxxx>]

Comments to CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

We commend the work of the CCWG and the effort invested in the writing of the 
recommendations now before the Internet Community. In support of this process 
and strengthening of the recommendations, we provide this narrowly-tailored 
comment on an issue still requiring additional work.

Recommendation #7: Strengthening ICANN's Independent Review Process.
Paragraph 234 is insufficient to accomplish the goal we believe it is trying to 
achieve. A critical problem in recent years has been the use of IRP actions as 
a means to appeal not only Board actions, but also decisions by third parties. 
Thus, the results of the New gTLD Objection proceedings are being appealed 
through the IRP, but without including the party who actually prevailed in the 
Objection proceeding.

We know of no other forum in which a losing party can appeal a decision without 
a) notifying the other parties directly involved and b) without the appeals 
process providing the winning party an equal opportunity to participate in the 
appeal process. To prevent the IRP from continuing to be used in this unfair 
manner, it is incumbent on the CCWG to draft special protections.

Paragraph 234 in this draft proposal appears to be addressing this issue, but 
to achieve equality, balance and justice in the IRP forum, the protections will 
need to be clarified and substantially strengthened.

The current paragraph reads:

?  "Be more accessible: 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. The CCWG-Accountability requires also giving the Empowered Community 
the right to have standing with the Independent Review Process"
This is necessary, but insufficient. Paragraph 234 should allow all 
"materially-affected" parties to participate in the IRP proceeding on an equal 
basis regardless of who brings the IRP proceeding.  If one party challenges a 
decision in which there are clear directly and materially-affected other 
parties, the IRP process should:


1.       Require clear and timely notification by the party filing the CEP 
and/or IRP actions to all parties known to be materially affected by the 
process or decision being challenged;



2.       Require timely publication to the larger community by ICANN of the CEP 
and IRP filing so that other interested and materially affected parties can 
come forward to participate (currently CEP and IRP negotiations can be well 
underway before others learn of the filings); and


3.       Enable and support full and equal participation in an IRP proceeding 
by all materially affected persons, groups and entities who are directly and 
causally connected to the Board's alleged violation of the Bylaws or the 
Articles of Incorporation: both those who suffer harm from the alleged 
violation and those who will suffer harm should the IRP Panel reverse or change 
existing policies and/or decisions.

To that end, we request and recommend that paragraph 234 be amended as follows:



?  "Be more accessible: 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 equal participation in CEP and IRP 
proceedings. Accordingly, the party filing a CEP notice and/or a complaint 
under the IRP for redress shall provide timely notification to all parties 
known to be materially affected by the process or decision being challenged. 
ICANN shall provide prompt and timely publication to the larger community of 
the CEP and/or IRP filing so that other interested and materially affected 
parties can come forward to participate (currently CEP and IRP negotiations can 
be well underway before others learn of the filings). The CEP and IRP 
proceedings shall enable and support the timely, full and equal participation 
of all materially affected parties. The CCWG-Accountability requires also 
giving the Empowered Community the right to have standing with the Independent 
Review Process"

These changes will achieve the fairness, balance, accessibility and inclusion 
that the CCWG is seeking to achieve in this important paragraph and reflect how 
similarly processes are conducted throughout the world.

Respectfully submitted,

Kathy Kleiman
Robert J. Butler
Attorneys with Fletcher, Heald & Hildreth
Arlington, Virginia USA


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Kathy Kleiman
Internet Counsel
1300 N. 17th Street, Suite 1100 | Arlington, VA 22209
Tel: 703.812.0476 | Mobile: 703.371.6846
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