Re: [soac-mapo] New 4.1 language

[Richard Tindal <richardtindal@xxxxxx>]

Thanks Alan. 

Robin -- is it the intent of your language that the panel  may provide  advice 
in the form of a recommendation?

RT

Sent from my iPhone

On Sep 14, 2010, at 11:15 AM, Alan Greenberg <alan.greenberg@xxxxxxxxx> wrote:

> 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 decision
>>>> 
>>>> b)  the Board, when it makes the decision to veto a gTLD on Rec 6 ground, 
>>>> to require a supermajority
>>>> 
>>>> c)  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: owner-soac-mapo@xxxxxxxxx [ mailto:owner-soac-mapo@xxxxxxxxx] On 
>>>> Behalf Of Gomes, Chuck
>>>> Sent: Tuesday, September 14, 2010 4:15 AM
>>>> To: Mary Wong; soac-mapo@xxxxxxxxx
>>>> Subject: RE: [soac-mapo] New 4.1 language
>>>> 
>>>>  
>>>> 
>>>> Thanks 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”.
>>>> 
>>>> Chuck
>>>> 
>>>>  
>>>> From: owner-soac-mapo@xxxxxxxxx [ mailto:owner-soac-mapo@xxxxxxxxx] On 
>>>> Behalf Of Mary Wong
>>>> Sent: Monday, September 13, 2010 5:59 PM
>>>> To: soac-mapo@xxxxxxxxx
>>>> Subject: [soac-mapo] New 4.1 language
>>>> 
>>>>  
>>>> Would 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 Programs
>>>> UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH 
>>>> 03301USAEmail: mary.wong@xxxxxxx.eduPhone: 1-603-513-5143Webpage: 
>>>> http://www.law.unh.edu/marywong/index.phpSelected writings available on 
>>>> the Social Science Research Network (SSRN) at: 
>>>> http://ssrn.com/author=437584 
>>>>  
>>>>  
>>>> As 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: firstname.lastname@xxxxxxxxxxx. For more 
>>>> information on the University of New Hampshire School of Law, please visit 
>>>> law.unh.edu
>>> 
>>> 
>>> 
>>> 
>>> IP JUSTICE
>>> Robin Gross, Executive Director
>>> 1192 Haight Street, San Francisco, CA  94117  USA
>>> p: +1-415-553-6261    f: +1-415-462-6451
>>> w: http://www.ipjustice.org      e: robin@xxxxxxxxxxxxx
>>> 
>>> 
>