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

[Evan Leibovitch <evan@xxxxxxxxx>]

Hello Margie and everyone,

I just wanted to state that my understanding of the WG's intentions
_completely_ matches Milton's. Please study this significant gap between the
WG's clearly-stated intentions and staff's re-interpretations in advance of
the proposed call with the drafting team.

- Evan




On 17 November 2010 20:20, Milton L Mueller <mueller@xxxxxxx> wrote:

> 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
>