The ICANN Bylaws in effect before 15 December 2002 called for the
establishment of a procedure by which the actions of the ICANN Board
can be subjected to independent third-party review:
(b) The Initial Board shall, following solicitation of input from
the Advisory Committee on Independent Review and other interested
parties and consideration of all such suggestions, adopt policies
and procedures for independent third-party review of Board actions
alleged by an affected party to have violated the Corporation's
articles of incorporation or bylaws. [Bylaws,
Article III, Sec. 4]
New bylaws went into effect on 15 December 2002 that call
for a different independent review procedure.
of March 2000 Independent Review Policy
In March 1999, the ICANN Board appointed a 10-member Advisory
Committee on Independent Review. The Committee posted for public
review and comment an Interim
Report with draft principles for independent review on 7 May 1999,
along with an addendum
on 26 May. Those documents were the subject of public discussion at
the ICANN meetings in Berlin, 26-27 May 1999. The Board accepted the draft
principles and directed the committee to complete its work in time
for consideration at the next round of meetings (in Santiago in August
The Committee's Final Report:
Principles for Independent Review was posted on 6 August 1999,
and was the subject of public discussion at the ICANN
meetings in Santiago, 25-26 August 1999. The Board accepted the principles
and directed the ICANN staff to prepare a written policy implementing
those principles for consideration at the Board's next round of meetings
in Los Angeles.
Following the Board's Santiago meetings, ICANN concluded a set of
tentative agreements with Network Solutions, Inc., and the U.S. Department
of Commerce. Those agreements included provisions relating to ICANN's
independent review structure. [See, for example, the ICANN-NSI
Registry Agreement, Definition 1.] Accordingly, the posting of
a final policy for independent review was delayed until the next round
of ICANN meetings, after the Board had determined whether or not to
approve the proposed ICANN-NSI-DoC agreements.
Prior to the March 2000 Cairo
meetings, the ICANN staff posted a Proposed
Independent Review Policy for public review and comment. On 10
March 2000, the ICANN Board adopted
the the Independent Review
Policy, making a few minor amendments from the Proposed
Independent Review Policy.
to Implement March 2000 Independent Review Policy
One of the first steps was the creation of a six-member Independent
Review Panel Nominating Committee (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 after the
March 2000 Independent Review Policy was adopted. When all six members
of the IRP NomCom were in place, on 7 May 2001, the ICANN Board called
for the NomCom to nominate a slate of nine candidates to initially
populate the Independent Review Panel.
The March 2000 policy specified
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 stated
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 for the NomCom to complete its work until 15 October
The NomCom was not able to provide its nominations by the extended
deadline. On 5 February 2002, three members of the NomCom provided
a submission including a slate of nine nominees, but noting that the
other three members of the NomCom had not participated in the process
of compling the list.
Approach to Independent Review
On March 2002, the ICANN General Counsel submitted a Report
on Status of Independent Review Nominating Committee to the ICANN
Board, noting that due to the lack of participation by a quorum of
the IRP NomCom, the committee had been unable to complete its task.
The report also described
the very difficult (and perhaps impossible) challenges of finding
a slate of candidates for the Independent Review Panel given the conditions
required by the March 2000 Independent Review Policy. The report proposed
immediately commencing a review of the March 2000 policy, with a view
toward developing a more workable policy.
At its 14 March 2002 meeting in Accra, Ghana,
the ICANN Board thanked
the members of the IRP NomCom for their service in attempting
to carry out the extremely challenging task presented to them and
the committee was excused from further service. The Board
referred the issues concerning an independent review mechanism
to the Committee on ICANN Evolution
and Reform for its consideration in the context of its ultimate
recommendations on ICANN evolution and reform.
During 2002, ICANN underwent an evolution
and reform process. On 15 December 2002, new
bylaws arising from that process went into effect. Article
IV, Section 3, of those bylaws calls for an independent review
process not involving a nominating committee.
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