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[Comment-Irac] Comments on Advisory Committe Draft Principles

July 11, 1999

To Advisory Committee on Independent Review

From: David Post

Subject: Additional Comments on Draft Principles (and Addendum)

I would like to submit the following comments on the Advisory Committe's Draft Principles for Independent Review (as supplemented by the Addendum, posted May 26, 1999).

1.  According to Principle 2 of the Draft Principles, the "The Members of the IRP shall be nominated by a Nominating Committee and confirmed by a 2/3 vote of the ICANN Board. The Nominating Committee shall be composed of individuals who are not members of the ICANN Board of Directors." 

I think that this structure is sound in principle, both in terms of the need for an independent Nominating Committee to propose names for the IRP, and the need for Board approval of those individuals put forward for this position.  The question becomes, then: how is the Nominating Committee to be formed?  I believe that any structure that would allow the Board itself to name the members of the Nominating Committee to be flawed and contrary to the fundamental principle that the Nominating Committee (and, more importantly, the Members of the IRP) be independent of the Board (though subject to a check by the Board through the requirement of 2/3 Board approval).

I believe the Committee should consider a role for the Supporting Organizations in forming the Nominating Committee.  Under the current proposed structure, as I understand it, the Supporting Organizations play no particular role with respect to the IRP.  The Supporting Organizations will play an important role in ICANN's activities, and will serve as a separate focus of power for ICANN, and I do not believe it would be inappropriate for them to have an indirect role in the nomination process.  I would propose that the Nominating Committee be formed by allowing each Supporting Organization to name one member to the Nominating Committee. To further the goal of independence of the IRP, you might consider adding a qualification that no person serving in any official capacity within the ICANN structure (and, in particular, no member of the Names Council), be permitted to serve simultaneously on the Nominating Committee.

2.  Draft Principle 9, as modified in the May 26 Addendum, provides that the IRP shall have the power to "recommend that the ICANN Board stay any action or decision until such time as the Board reviews and acts upon the opinions of the IRP."  First, I fully and wholeheartedly support the change in Principle 9 from the May 7 draft (which had provided that the IRP could issue "advisory opinons" regarding possible Board violations.  You sought comment on three possible additional powers for the IRP: 

     (a) The power to immediately stay enforcement or execution of the contested decision of the Board.
     (b) The power to stay enforcement or execution of the contested decision of the Board only if the Board has failed to act on the IRP's determination within 14 days.
     (c) The power to require the Board to act on the IRP's determination at its next meeting or within 30 days, whichever is sooner.

Although I recognize that it is in some sense the "weakest" of the three alternatives, I would urge the Committee to adopt (c).  As many (myself included) have stressed during your deliberations on these questions, the ultimate power of the IRP is the power of persuasion and the power of public opinion and public credibility.  The goal here is not to create an institution that is in some sense more powerful than the Board of Directors, or that stands in some superior relationship to the Board, which is what I would fear from adopting either of the first two alternatives.  Just as the IRP functions as a check on the Board's power, through its power to declare that the Board has acted in a manner contrary to its governing documents, so, too, can the Board act as a check on the IRP's powers, through its ability to take actions that it believes are in the best interests of its various constituencies and the Internet as a whole notwithstanding such a declaration.  If the IRP is performing its functions well -- if it is producing reasoned and persuasive decisions -- the Board will and should be less likely to ignore its determinations, particularly if, as contemplated by alternative (c), it must consider and act upon any such determination in a public and transparent manner.  I do not believe the Board can, or should, be forced to abide by any such determination.

David G. Post
Associate Professor of Law
Temple University Law School
Postd@erols.com http://www.temple.edu/lawschool/dpost.html