Independent Review


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.

Development 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 1999).

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.

Efforts 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 2001.

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.

New 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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