Re: [soac-mapo] New 4.1 language
If I understand correctly, the issue is not whether the expert advisors provide a hard recommendation or not. I personally believe that they should, but whether or not it is a requirement can be left to the Board to decide and reflect that decision in the contract. It is of course possible that the expert panel cannot come to a decision. But if the final decision is to be based on principles of international law, I find it hard to accept that the expert panel cannot decide, but the Board is supposed to be able to do so. The unspoken issue is that the final decision will be then based on politics... No real surprise.
Nevertheless, the issue here is whether the outcome of that expert panel is called a "decision" which the Board would then have to uphold or overturn, or is called "advice" which the Board can choose to follow or not.
Alan At 14/09/2010 12:57 PM, Richard Tindal wrote:
On point a) I don't believe we have agreement on whether or not the expert advisors should provide a recommendation.RT On Sep 14, 2010, at 9:36 AM, Robin Gross wrote:I think the 3 points summarized below are good encapsulations of what we have been driving at, so let's get this clear unambiguous language into the report.Robin On Sep 14, 2010, at 2:02 AM, Milton L Mueller wrote:I agree that Chuck's questions are good ones and need to be answered.What we want, I think, is _both_ an option for the board to get expert advice, _and_ an entity that handles the procedural aspects of processing objections. Whether those functions are bundled or not is perhaps an implementation detail that can be left to others to decide.We some of us also want, is a) the expert advisors not to make a decisionb) the Board, when it makes the decision to veto a gTLD on Rec 6 ground, to require a supermajorityc) the Board's voting threshold should be unaffected by the expert group's recommendation or advice. If it says, Yes, No or Maybe, the board still should need a supermajority to veto it. Again, that is because the TLD should be so clearly repugnant and the advice so unambiguous that the supermajority of the board would be persuaded From: <mailto:owner-soac-mapo@xxxxxxxxx>owner-soac-mapo@xxxxxxxxx [<mailto:owner-soac-mapo@xxxxxxxxx>mailto:owner-soac-mapo@xxxxxxxxx ] On Behalf Of Gomes, ChuckSent: Tuesday, September 14, 2010 4:15 AM To: Mary Wong; <mailto:soac-mapo@xxxxxxxxx>soac-mapo@xxxxxxxxx Subject: RE: [soac-mapo] New 4.1 languageThanks Mary for continuing to work on this language. I encourage others to comment and just want to communicate some questions I have. Regarding "it may appoint a third party entity to administer the purely procedural aspects of an objection that has been filed. Such a provider shall be appointed under contract for a fixed period of time appropriate for the application timetable. It shall not provide expert advice nor recommendations regarding the outcome of an objection, although it may, if requested by the Board, assist in seeking appropriate international law experts for particular objections." do we care whether ICANN uses a third party to perform administrative functions or not? Wouldn 't the third party need a high level of expertise just to qualify "appropriate international law experts for particular objections" ? ICANN staff has already done a lot of work in identifying possible legal experts; if a third party helps, good; maybe they have already used a third party. If a third party that has the expertise needed to recommend expert panelists, I don't think it would make sense from a cost perspective to have them "the purely procedural aspects of an objection that has been filed".ChuckFrom: <mailto:owner-soac-mapo@xxxxxxxxx>owner-soac-mapo@xxxxxxxxx [<mailto:owner-soac-mapo@xxxxxxxxx>mailto:owner-soac-mapo@xxxxxxxxx ] On Behalf Of Mary WongSent: Monday, September 13, 2010 5:59 PM To: <mailto:soac-mapo@xxxxxxxxx>soac-mapo@xxxxxxxxx Subject: [soac-mapo] New 4.1 languageWould this work better as a possible replacement for the existing Rec. 4.1 language?"In addition to the Board's ability to seek external expert advice under Article XI.A of the Bylaws, it may appoint a third party entity to administer the purely procedural aspects of an objection that has been filed. Such a provider shall be appointed under contract for a fixed period of time appropriate for the application timetable. It shall not provide expert advice nor recommendations regarding the outcome of an objection, although it may, if requested by the Board, assist in seeking appropriate international law experts for particular objections. As in all other areas of ICANN policy, the Board will ultimately decide whether to adopt or reject the advice of any external experts it consults in relation to an objection.''Cheers Mary Mary W S Wong Professor of Law Chair, Graduate IP ProgramsUNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH 03301USAEmail: <mailto:mary.wong@xxxxxxxxxxx>email@example.comPhone: 1-603-513-5143Webpage: <http://www.law.unh.edu/marywong/index.php>http://www.law.unh.edu/marywong/index.phpSelected writings available on the Social Science Research Network (SSRN) at: <http://ssrn.com/author=437584>http://ssrn.com/author=437584As of August 30, 2010, Franklin Pierce Law Center has affiliated with the University of New Hampshire and is now known as the University of New Hampshire School of Law. Please note that all email addresses have changed and now follow the convention: <mailto:firstname.lastname@xxxxxxxxxxx>firstname.lastname@xxxxxxxxxxx. For more information on the University of New Hampshire School of Law, please visit <http://law.unh.edu/>law.unh.eduIP JUSTICE Robin Gross, Executive Director 1192 Haight Street, San Francisco, CA 94117 USA p: +1-415-553-6261 f: +1-415-462-6451w: <http://www.ipjustice.org/>http://www.ipjustice.org e: <mailto:robin@xxxxxxxxxxxxx>robin@xxxxxxxxxxxxx