IRP Decision "minority opinion" can't be considered as an excuse for ICANN

[Thierry Moreau <thierry.moreau@xxxxxxxxxxxxx>]

To whom it may concern:

I have read the IRP decision concerning .xxx and the subsequent ICANN 
consultation document with great interest.
I have a particular interest in Internet governance and conflict 
resolution processes and was excited to see a full-fledged ruling from a 
competent and professional dispute resolution entity in this field. I 
was surprised however at the dilatory consultation document produced by 
ICANN.
What is shockingly misleading in that document is the *outright 
rejection* of the panel’s conclusion and the label used for presenting 
this option: "Adopt the findings of the dissent."
The basis for my reaction is the very mechanism of a three-member 
arbitration panel: ICANN selected its member on its own, and was 
*expected* to select a law professional having a bias for the ICANN 
position and/or arguments, ICM registry did the same on its side.
The third member is the only one without bias. It is thus very unlikely 
to have anything but a 2-to-1 result in a three-member arbitration 
panel. That is dispute resolution 101 for those who have some interest 
in dispute resolution processes.
The author(s) of the consultation document produce an intellectual 
fallacy in using the phrase "adopt the findings of the dissent" as if it 
was a decision of an Appeal or Supreme Court where dissent comes from an 
a-priori unbiased judge.
In using this phrase, the author(s) deliberately omit(s) the true status 
of the 2-to-1 IRP decision (and the weak written opinion of the dissent 
as I read it) as a final ruling. As such it could mislead the ICANN 
Board members and members of the public. And it prepares the public 
relations message for outright rejection of the IRP decision by ICANN. I 
find this attitude lacking respect to the IRP arbitration process.
I wonder to which extent an author of the consultation document being a 
registered legal adviser is complying with their professional code of 
conduct when he/she distorts the basic facts about the IRP decision (as 
if its minority opinion was from a judge having a duty of neutrality).
External accountability of ICANN is essential to the future of Internet 
governance, and ICANN should not fall in the trap of postponing this 
decision to another case or another round of the same case.
Thanks for handling these important ICANN accountability issues now that 
they have became so critical.

Regards,


Thierry Moreau
Montreal, Canada