[soac-mapo] RE: Follow-up from Monday's Consultation on Rec. 6

[Milton L Mueller <mueller@xxxxxxx>]

Let me attempt to answer Question 1:


 1.  With regard to the recommendations related to the role of the Board, is it 
the CWG's position that the ICANN Board be the primary trier of fact; that is 
the Board would hear (in the first instance) every Rec6 objection and be 
required to make a determination on the merits?
There was complete consensus in the CWG on the Board's direct responsibility 
for the outcome of any objection. See Recommendation 4.1: "Ultimate resolution 
of the admissibility of a TLD subject to a Rec6 objection rests with the Board 
alone and may not be delegated to a third party."
It did not seem from our discussion that this was the intent.  Rather, based on 
the discussion, some CWG members indicated that the CWG agreed that all 
objections would be filed in the first instance with a dispute resolution 
service provider (DRSP), which in turn would appoint independent expert 
panelists experienced in making determinations on issues such as those covered 
by Rec6.  Then, only in certain circumstances, would the Board be asked to 
review the expert determination.
No. This is incorrect. The CWG does not want a DRSP to make the decision. See 
recommendation 4.6. It wants to allow the Board to consult with or get advice 
from experts on any given decision (recommendations 4.2, 4.4 and 4.5), but the 
actual determination would have to be made by the Board itself. This is very 
clearly stated in Recommendations 4.x.
In light of the Board's resolutions in Trondheim indicating that the Board 
"wishes to rely on the determinations of experts regarding these issues" and 
that the Board "intends to approve a standard process for staff to proceed to 
contract execution and delegation on applications for new gTLDs where certain 
parameters are met," how and at what point does the CWG envisage the Board's 
involvement in these objections?
Members of the CWG understand all too well why the board might "wish" to rely 
on the determinations of experts. But that is not what the community wants them 
to do.
My sense is that most of us expect objections to be relatively rare. That is, 
every gTLD applicant has a strong incentive to avoid the risks and costs 
associated with generating an objection. So there are unlikely to be scaling 
issues associated with direct board responsibility. Indeed, one of the reasons 
the CWG took the approach it did is that we do not want to encourage objections 
- they should be exceptional and applicable only to the clearest and most 
universally repulsive kinds of proposals. Indeed, setting up an outsourced DRSP 
that makes objections too easy and quick to process has the effect of 
encouraging them.
When objections do occur, the board can ask experts for advice regarding the 
interpretation and applicability of international law, as "general principles 
of international law" is the standard by which objections will be judged. But 
it will then have to take that advice and have a vote specifically on the topic 
of upholding the objection. That vote should only uphold the objection through 
a supermajority of 2/3. See Recommendations 5.1 and 5.2.
3.  On the suggestion from the CWG that the GAC or ALAC should be able to bring 
objections, different views seem to have been expressed as to what that would 
entail; for example, would an objection from just one GAC or ALAC member be 
sufficient for the advisory committee (AC) as a group to file an objection?  Is 
this intended to provide a veto by individual governments? Or would a majority 
or supermajority of AC members be required for the AC to lodge an objection?
The answer to this question is very clear from even the most cursory review of 
our deliberations. See Recommendation 2.3: "a national law objection by itself 
should not provide sufficient basis for a decision to deny a TLD application."  
See also Recommendation No. 2.4: The Applicant Guidebook should not include as 
a valid ground for a Rec6 objection, an objection by an individual government . 
It was clear that the GAC or ALAC as a whole would have to support an 
objection, not any individual member of either AC.
Thus it is patently obvious from our recommendations related to the role of 
national law and international law that NO individual government should be able 
to veto an application; instead, any objection must be based on universally 
recognized international laws. Whether a majority or supermajority of AC 
members is required was not, I think, directly addressed by the CWG, but given 
the implications for freedom of expression and our explicit opinion in 
Recommendations 5.1 and 5.2 regarding a supermajority of the Board, it is 
advisable that an AC supermajority be required. If 51% of governments or ALAC 
reps think a TLD contravenes international law and 49% don't, it seems logical 
to conclude that its status is uncertain. Therefore, a supermajority should be 
required.
--MM