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Internet Corporation for Assigned Names and Numbers

At its 14 March 2002 meeting in Accra, Ghana, the Board will consider the current state of implementation of the ICANN Independent Review Policy. The following status report describes the policy's status, its state of implementation, and possible options for proceeding to a functioning independent review procedure.

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Report on Status of Independent Review Nominating Committee

To the Board:

Summary

At its meeting on 14 March 2002 in Accra, Ghana, the Board will consider the current situation with implementation of the Independent Review Policy. Under the policy currently in effect, progressing to a point where independent review can occur involves a sequence of many steps. For ten months, the process has been at the stage of waiting for the Independent Review Panel Nominating Committee (IRP NomCom) to nominate a slate of nine individuals as possible members (subject to Board confirmation) of the Independent Review Panel.

Although a slate was recently suggested by three members of the IRP NomCom, under the requirements of the ICANN bylaws those members did not constitute a quorum of the NomCom. Accordingly, as a committee the NomCom has not provided the nominated slate required by the Independent Review Policy and the ICANN bylaws. Based on my inquiries to the member that submitted the slate, it does not appear likely that the NomCom will be able to propose a slate in a manner that complies with the bylaws requirements for committee action.

Background

At its 10 March 2000 meeting in Cairo, the ICANN Board adopted an Independent Review Policy. The policy's goal is to provide a mechanism for those materially affected by Board actions to obtain independent review of those actions. The review afforded is specifically limited to two types of allegations:

a. that the Board acted or failed to act in a manner contrary to the ICANN's Articles of Incorporation or bylaws; or

b. that there is an absence of the consensus required to support the Board's adoption of a "consensus policy" that must be followed by registrars and registry operators according to contract with ICANN.

The Independent Review Policy established a sequence of steps that would lead to an operating independent-review mechanism.

One of the first steps was the creation of a six-member IRP NomCom, composed of two appointments of each of ICANN's three Supporting Organizations. This was not accomplished for all six members until over a year later. When all six members of the IRP NomCom were in place, on 7 May 2001, the Board called for the NomCom to nominate a slate of nine candidates to initially populate the Independent Review Panel.

The policy specifies that nominees should (1) be "of high professional standing and accomplishment", (2) be "current or former judge[s]" or judge-equivalents, and (3) hold no position in the ICANN structure. In June 2001, the NomCom made a thirty-day open call for suggested nominees. Thirty-two suggested names were received. The NomCom also conducted some additional outreach, which met with limited success in view of the length of time needed to obtain suggestions from judicial and bar groups.

The policy states that the NomCom should make nominations within 45 days. In May 2001, however, when requesting the NomCom to nominate the initial set of nine candidates, the Board recognized that additional time would be necessary due to the large number of nominees required and the initial start-up of the NomCom. The Board therefore allowed 90 days, meaning that the nominations were initially scheduled to be provided to the Board on 20 August 2001.

The NomCom was unable to provide the slate of nine nominees on that schedule and requested an extension. At its Montevideo meeting, on 10 September 2001, the ICANN Board extended the time until 15 October 2001.

The NomCom was not able to provide its nominations by the extended deadline. On 5 February 2002, three members of the NomCom provided the following submission:

"Scott Hemphill" shemphill@domainbank.com
To: <irp-nomcom-coordinator@icann.org>
cc: <irp-nomcom@icann.org>
Subject: Fw: [irp-nomcom] Nominees -proposal from Liu
Date: 02/05/02 10:10 AM

Emma:

The IRP Nominating Committee would like to forward the following list of candidates to the ICANN Board for consideration.

The list was approved by Scott Hemphill, Houlin Zhao and Ching-Yi Liu. The other members of the committee did not vote.

Zoe Baird (US)
Diane Cabell (US)
Scott Donahey (US)
David Post (US)
Michael Kirby (AU)
Houston Putnam Lowry (US)
Margit Brandl (AT)
Henry Perritt (US)
Zheng Chengsi (CN)

Please advise on how to proceed from here.

Best regards,

Scott [Hemphill]

In subsequent communications, Mr. Hemphill confirmed:

1. The list in the above e-mail was approved by three members of the committee, but the other members of the committee neither voted for, nor voted against, nor participated in any way in creation of this list.

2. The three participating committee members made diligent efforts to allow the others to participate, and there is no reason to think that continued efforts would result in greater participation.

Discussion of Status

Section 4.1 of the Independent Review Policy states that appointments to the Independent Review Panel will be made by (1) nomination by the NomCom and (2) confirmation by a two-thirds vote of the Board. Under Article VII, Section 5 of ICANN's bylaws, the NomCom can act only through participation of a majority of its members, namely four members:

ARTICLE VII: COMMITTEES.

Section 5. QUORUM; MEETINGS

A majority of the members of the committee shall constitute a quorum at any meeting of that committee. Each committee shall meet as often as is necessary to perform its duties.

Thus, it would be contrary to ICANN's presently existing Independent Review Policy and bylaws for the Board to vote on the candidates submitted by the three NomCom members.

Options for Proceeding

Based on all indications, there does not appear to be much prospect the NomCom will be able to provide nominations meeting the requirements of the bylaws if given more time. Thus, it is appropriate to consider alternative means of proceeding.

It is appropriate to observe at the outset that the current Independent Review Policy assumes that the NomCom can do what is certainly a very demanding, and perhaps an impossible, task. To assemble a well-qualified Independent Review Panel, the following must be found:

1. Nine panelists who are judges, retired judges, or have equivalent judicial-like experience;
2. Who are independent (and will be perceived as such), tending to mean that they should not have been significantly involved in the ICANN process;
3. Who preferably have knowledge and intellectual interest concerning Internet matters;
4. Who are willing to spend an unknown, but possibly significant, amount of time handling potentially very contentious disputes; and
5. Who are willing to do all this without compensation for their time.

Given these criteria, it is perhaps not surprising that the NomCom encountered great difficulties in finding candidates with the above qualifications. Indeed, only one person on the list submitted by three NomCom members is a current judge, and none are former judges. Three on the list have significant traditional arbitration experience. Some (but not all) of the others have had some experience as ICANN UDRP panelists. While most of the candidates reviewed by the committee based on the open call (and also those on the list submitted by the three members) have a keen interest in ICANN matters, this means that most of them have well-known opinions, and in some cases financial interests, in matters affected by ICANN.

The committee members should be thanked for taking on this daunting task. On reflection, however, the present lack of results seems nearly inevitable under the currently existing Independent Review Policy. That policy, after all, was adopted early in ICANN's life, when there was scant guidance from real-world experience. The policy itself recognizes its initial nature:

5.14 No later than two years after the IRP Nominating Committee begins operation, the ICANN Board of Directors will review and evaluate the IRP nomination and selection process, providing opportunities for public notice and comment by the Internet community.

That review is scheduled to be conducted by May 2003. In view of the extreme difficulties in implementing the policy, it may be wise to begin the review immediately.

In the meantime, the Board may want to consider whether some type of interim independent-review mechanism should be adopted. Although no "consensus policies" have been adopted through the ICANN process that would be subject to independent review under the contracts with registrars and registry operators, it would be beneficial to institute a process by which those claiming bylaws violations in Board actions materially affecting them can seek independent review.

In this connection, the scope of independent review under the current policy is "to compare contested actions of the ICANN Board to the Bylaws and Articles of Incorporation and to declare whether the ICANN Board has acted consistent with the provisions of those documents." (Section 3.4 of the policy contemplates that the Independent Review Panel will make recommendations to the ICANN Board for appropriate action.) It has been suggested by some in the community that this function could be instituted, with relatively little start-up time, by use of an established arbitration mechanism, as available through commercial arbitration centers. In view of ICANN's limited financial resources, should such a system be thought appropriate under the circumstances, it may be appropriate to require those seeking independent review under this mechanism to at least share in the costs paid to the arbitrators and the arbitration center.

Respectfully submitted,

Louis Touton
General Counsel