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The Advisory Committee on Independent Review is pleased to have received a number of public comments on its Draft Principles for Independent Review. In response to the concerns expressed in some of those comments, the Committee recommends to the Board one modification to Draft Principle 9, and proposes (without specific recommendation) three alternative approaches to the question of the powers of the Independent Review Panel upon a finding that an action or inaction of the Board violates the Bylaws or Articles of Incorporation. First, the Committee agrees with the suggestion that the authority of the IRP must be more clearly stated and thus more firmly rooted in the overall ICANN structure. The Committee recommends that Draft Principle 9 read as follows:
P9: The IRP shall have the authority to: (i) declare whether an action or inaction of the ICANN Board was contrary to the Corporation's Articles of Incorporation and/or Bylaws, (ii) request additional written submissions from the claimant, the Board, the Supporting Organizations, or from other parties, and (iii) 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.
Second, the Committee notes that several commentators have suggested that the IRP, upon a finding of a Bylaws or Articles violation, have a stronger ability to (i) freeze the status quo, and (ii) force a rapid response from the ICANN Board of Directors. Currently, Draft Principle 9 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." Synthesizing public comment on this point, the Committee poses for the consideration of the Board three possible additional powers for the IRP, listed in descending order of strength:
(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.
The Committee has differing views on the best
choice of the three, and so puts forward all three options for
public comment and the consideration of the Board.