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Final Report of the Advisory Committee on Independent Review

Principles for Independent Review

Final Report of the
Advisory Committee on Independent Review

NOTE - This document is an advisory committee recommendation in draft form. As such, it is not authoritative and is not to be relied on by any party. Members of the Internet community are encouraged to submit comments on the proposed principles.

How do I submit comments? Comments on this Final Report should be sent via email to comment-irac@icann.org.

How do I read the comments of others? Comments will be posted on the ICANN website at http://www.icann.org/comments-mail/comment-irac/maillist.html for public review and response.

Introduction

After study and deliberation, the Advisory Committee on Independent Review recommends to the ICANN Board the following 24 principles, which are intended to serve as a framework for the independent review mechanism mandated in the ICANN Bylaws at Article III, Section 4(b). Subject to public comment and review, the Committee expects the ICANN Board to consider and take action on this Report at its August 26 meeting in Santiago, Chile.

The proposed principles have been framed as responses to key questions, and are accompanied by a proposed mission statement and some explanatory comments.

Mission Statement

The purpose of independent review is to provide a meaningful check on the powers and actions (or inactions) of the ICANN Board of Directors. The mission of the Independent Review Panel will be to compare contested actions of the ICANN Board to the Bylaws and Articles of Incorporation, to declare whether the ICANN Board has acted consistent with the provisions of those documents, and to do so in an open and efficient manner.

Principles for Independent Review

Part I: General Principles

Question 1: What form should the "independent third party" required by the ICANN Bylaws take?

Principle 1: The "independent third party" shall be an Independent Review Panel (IRP) consisting of nine (9) members, any three (3) of which will adjudicate each claim.

[Comment 1: The Committee believes that independent review should be conducted by a body that is independent of the ICANN Board of Directors, both in its appointment and in its proceedings. Looking to the model of many appellate courts around the world, the Committee concludes that each claim for independent review should be resolved by a group of three panelists: a panel of one would significantly increase the risk of arbitrariness; a panel of two raises the possibility of deadlock; and a panel of four or more would likely become unwieldy and inefficient. At the same time, there are significant uncertainties about the nature and volume of future claims for independent review. Because IRP panelists will serve at least initially in a voluntary capacity and may not always have adequate time to devote to the IRP, and because of the likelihood that some panelists may have conflicts of interest in some cases, the Committee believes that a group of nine should be appointed, from which three panelists will be drawn to resolve each individual claim. Moreover, a pool of nine panelists is sufficiently large to make possible meaningful diversity in geographic regions, legal systems, and so forth.]

Question 2: Who should appoint the members of the IRP?

Principle 2: The Members of the IRP shall be nominated by a Nominating Committee and confirmed by a 2/3 vote of the ICANN Board.

[Comment 2: To ensure that nominated candidates command the respect and approval of a broad cross-section of ICANN's constituencies, the individuals selected by the Nominating Committee should be subject to the approval of a 2/3 supermajority of the ICANN Board.]

Question 3: Should the ICANN Board of Directors vote separately on each IRP nominee, or vote on the group of nominees as a whole?

Principle 3: When more than one IRP vacancy is to be filled at the same time, the ICANN Board of Directors will take a single vote on the group of nominees selected by the Nominating Committee.

[Comment 3: This principle is designed to promote a consensus-based nominating process. In the view of the Committee, the ICANN Board ought not to be allowed to pick and choose from among the group of nominees selected by the Nominating Committee. If a given group of nominees is not acceptable to a 2/3 majority of the ICANN Board, the list of nominated names should be sent back to the Nominating Committee for revision until a broadly acceptable group is nominated.]

Part II: Principles for the Nominating Committee

Question 4: Who should appoint the members of the Nominating Committee?

Principle 4: The Nominating Committee will consist of two individuals appointed by each of the ICANN Supporting Organization councils (Names Council, Address Council, Protocol Council).

[Comment 4: After considerable thought and discussion, the Committee concludes that the Nominating Committee should be appointed by the existing Supporting Organization councils. In order to achieve a credible degree of independence, it is important to the Committee that the Nominating Committee not be chosen directly or indirectly by the ICANN Board of Directors. At the same time, the Committee understands that the ICANN structure must be as lightweight as possible, and sees no need to create yet another layer of organizational structure within ICANN. Put another way, there would no benefit from the addition of yet another structure to ensure the total independence of the body that will ensure the independence of the body that will independently review the actions of the ICANN Board – that path amounts to a reductio ad absurdum. Though falling within the ICANN structure, the Supporting Organization councils are fully independent of the ICANN Board, and can be trusted to name Nominating Committee members who will responsibly apply the criteria for IRP selection stated in this Report. The Committee recognizes that it may be appropriate for ICANN's At-Large membership to have a role in selecting members of the Nominating Committee as well. Accordingly, the Committee recommends that the Board revisit this principle once an At-Large membership structure has been established, to determine whether the structure provides a workable vehicle for the At-Large membership to join the Supporting Organization councils in appointing members to the Nominating Committee.]

Question 5: Who should serve on the Nominating Committee?

Principle 5: Those selected to serve on the Nominating Committee should be individuals who are likely to be able to find, evaluate, and recruit IRP nominees who meet the criteria set forth in this Report. Any individual who does not hold an official position or office within the ICANN structure may be selected by the Supporting Organizations to serve on the Nominating Committee.

[Comment 5: The first sentence of Principle 5 is intended to be a guideline for the Supporting Organization councils. In light of the Committee's recommendation that the IRP be composed of judges, former judges, or similarly experienced individuals, the Supporting Organization councils should attempt to name Nominating Committee members who will be able to find, evaluate, and recruit those kinds of individuals. Nominating Committee members need not be lawyers or judges themselves, but the Committee intends that the Supporting Organization councils should appoint Nominating Committee members with that purpose in mind.

The second sentence of Principle 5 is of crucial importance. In order to ensure the independence of the IRP, the Committee believes that panelists should be chosen in the first instance by people who are not ICANN Directors and who do not hold any position or office within the ICANN structure, including the DNSO Constituency Groups. This means that the following non-exhaustive list of individuals will be ineligible to serve on the Nominating Committee: ICANN Directors; ICANN staff and advisors; members of Advisory Committees (including the RSSAC and GAC); members of the Supporting Organization councils; the chair of the DNSO General Assembly; members of DNSO constituency group councils; officials of the DNSO constituency groups.]

Question 6: Will the Nominating Committee be a standing body, or will a new Nominating Committee be appointed for every vacancy as it arises?

Principle 6: The Nominating Committee will be a standing body, but will be convened only upon notification from the ICANN Board that a vacancy exists on the IRP.

[Comment 6: The Committee believes that the Nominating Committee should be chosen for fixed terms, rather than asking the Supporting Organizations to name new members every time a vacancy in the IRP arises. For the task of the Nominating Committee, the advantages of experience and consistency are considerable.]

Question 7: How long should the terms of the Nominating Committee be?

Principle 7: The members of the Nominating Committee will be appointed for three-year terms, except that half of the members initially appointed will be appointed for two-year terms. For the first round of appointments, each Supporting Organization council will appoint one member to a three-year term, and one member to a two-year term. The Supporting Organization councils are free to re-appoint members of the Nominating Committee.

[Comment 7: These recommendations are self-explanatory. Three year terms allow for consistency and the accumulation of practical experience. For the same reason, the Committee sees no reason to limit Nominating Committee members to a single term.]

Question 8: How should the Nominating Committee identify potential candidates for the IRP?

Principle 8: The Nominating Committee will conduct an open call to the Internet community for potential nominees, but will not be restricted to those potential nominees in making its nominations. The Nominating Committee will be expected to undertake an active search and to affirmatively recruit appropriate candidates to serve on the IRP.

[Comment 8: Given the specialized legal nature of independent review (namely, comparing Board resolutions against ICANN's Bylaws and Articles of Incorporation), the Committee believes that the Nominating Committee should affirmatively seek out candidates for nomination. Many excellent candidates have not been deeply involved in the ICANN process, and the Nominating Committee should be encouraged to generate its own list of possible nominees. At the same time, it is important for the Nominating Committee to be open to any and all suggestions from the Internet community. As a part of its affirmative recruitment responsibilities, the Committee expects that the Nominating Committee will seek the advice of international judicial and legal associations.]

Question 9: How much time should the Nominating Committee be given to make nominations?

Principle 9: The Nominating Committee will forward its IRP nominations to the ICANN Board of Directors within 45 days of receiving notice that a vacancy has arisen.

[Comment 9: As a standing body, the Nominating Committee should be able to work quickly and to make nominations within 45 days. The Committee expects that more than 45 days may be needed for the first round of nominations to the IRP.]

Question 10: How should the Nominating Committee conduct its work?

Principle 10: The Nominating Committee will conduct its proceedings by email and otherwise via the Internet. Where necessary, the Nominating Committee may conduct proceedings by telephone.

[Comment 10: In order to keep costs as low as possible and response times as short as possible, the Nominating Committee should utilize the Internet to the greatest extent possible.]

Question 11: Should the members of the Nominating Committee be compensated for their efforts?

Principle 11: The members of the Nominating Committee will serve voluntarily and will not be compensated for their efforts.

[Comment 11: As with most elements of the ICANN structure (including the Board of Directors), the Nominating Committee's work should be done by volunteers on a voluntary basis.]

Question 12: What kinds of individuals should be nominated by the Nominating Committee?

Principle 12: The Nominating Committee must nominate individuals who meet the criteria stated in this Report.

[Comment 12: The Committee believes that legal skills and judicial/arbitral experience will be required to achieve the kind of independent review defined in the ICANN Bylaws and that the Nominating Committee should select nominees who will be able to bring these skills and experience to bear on the claims presented. The Committee has therefore identified specific criteria for the Nominating Committee to employ in selecting nominees to recommend to the ICANN Board.]

Question 13: What criteria should be applied by the Nominating Committee in selecting nominees to the IRP?

Principle 13: The following criteria must be applied by the Nominating Committee in selecting nominees to the IRP:

(a) Nominees to the IRP should be persons of high professional standing and accomplishment.
(b) Nominees to the IRP should be (i) current or former judges, and/or (ii) individuals with legal training who would qualify for judicial appointment and who have experience conducting arbitration or a similar non-judicial dispute resolution process.
(c) Nominees to the IRP should hold no other office or position within the ICANN structure.

[Comment 13: These criteria set forth the Committee's views as to the nature of the professional qualifications and independence that should characterize the members of the IRP. In order for independent review to be meaningful, the decisions of the IRP must carry the weight that independent, experienced judges (or similarly qualified individuals) can bring to the process. Independent review, after all, is not intended to serve as an ongoing, unconstrained inquiry into the wisdom of particular policy decisions by the ICANN Board; on the contrary, the scope of independent review is explicitly focused on the Board's compliance with its Bylaws and Articles of Incorporation. That kind of analysis (the comparison of a Board resolution with particular provisions of the Bylaws and Articles of Incorporation) is precisely the kind of review that judges are trained to conduct. As to criterion (c), the Committee believes that the nominees to the IRP should be fully independent, holding no other position or office within the ICANN structure.]

Question 14: Should the members of the IRP be nominated according to geographic or other diversity?

Principle 14: The members of the IRP shall be nominated primarily on grounds of competence and experience and without reference to strict geographic or other quotas; at the same time, the Nominating Committee shall take account of various diversity factors, including diversity in geographic representation and diversity in legal systems, in making its choices.

[Comment 14: While the Committee considers diversity of geographic region and diversity of legal systems to be important components of a successful independent review body, the Committee concludes that strict quotas and/or complex formulas are unnecessary to achieve that goal. Rather, the Nominating Committee should be directed to consider such diversities in making its selections. The Committee believes that strict quotas and/or complex formulas will needlessly interfere with the Nominating Committee's primary directive, which is to choose panelists on the basis of professional competence, as evidenced by their professional records, accomplishments, reputations, and so forth.]

Question 15: How will the nominating process be revised and improved in the future?

Principle 15: No later than two years of operation, the ICANN Board of Directors will review and evaluate the operation of the IRP nomination and selection process, including public notice and comment by the Internet community.

[Comment 15: In order to allow improvements on the basis of experience, the Committee believes that the nominating process should be subjected to a full-scale review by the ICANN Board and the Internet community no later than two years after its launch.]

Part III: Principles for the Independent Review Panel

Question 16: For how long should the members of the IRP be appointed?

Principle 16: The Members of the IRP shall be appointed for terms of four years. The initial Members of the IRP shall have terms of staggered length: three initial Members shall be appointed for a 4-year term; three for a 3-year term; and three for a 2-year term.

[Comment 16: The Committee believes that the terms of IRP panelists should be long enough to allow them to orient themselves to the role and to develop experience and competence on the job, and to promote a sense of independence in decisionmaking. In its interim report, the Committee recommended a six-year term, but recognized that a term of six years may discourage qualified individuals from assuming an essentially voluntary commitment of that length. Public comments supported the notion that a six-year term is an unreasonably long commitment. Accordingly, the Committee recommends a four-year term, with initial terms staggered to promote consistency across transitions.]

Question 17: Should independent review be available to challenge the Board's failure to act, as well as Board actions? That is, should a claimant be permitted to seek independent review on the ground that the Board had not taken some action specifically required by the Bylaws?

Principle 17: A claim for independent review may be filed on the ground that the Board has acted or failed to act in a manner contrary to the Corporation's Articles of Incorporation and/or Bylaws.

[Comment 17: Because the ICANN Bylaws set forth duties as well as prohibitions, the Committee believes that independent review should be available in cases of failure to act as well as actions by the Board.]

Question 18: Who may file a claim for independent review?

Principle 18: Any individual or entity may file a claim if that individual or entity has been materially affected by the contested action or failure to act by the ICANN Board.

[Comment 18: This principle restates the "affected party" standard set forth in the ICANN Bylaws, Art. III, Sec. 4(b). The Committee believes that the term "affected party" sweeps too broadly, however, as nearly every Internet user can be said to be affected in some quantum by nearly any decision of the ICANN Board. Accordingly, the Committee recommends that the conventional legal threshold of materiality be incorporated, keeping independent review available to those individuals or entities that have more directly been affected by the action (or failure to act) at issue.]

Question 19: Should independent review claimants be required to first avail themselves of ICANN's internal reconsideration process?

Principle 19: Individuals and entities must first exhaust ICANN's internal reconsideration process before filing a claim for independent review by the IRP. However, if ICANN's internal reconsideration process has not been completed within 30 days after the filing of a request for reconsideration, the complaining individual or entity may proceed directly to file a claim for independent review.

[Comment 19: The Committee believes that complaining individuals should first exhaust ICANN's internal reconsideration process before bringing their claim before the IRP. A requirement of exhaustion of internal remedies promotes efficiency by maximizing the odds that the ICANN Board will resolve disputes on its own before they reach the IRP. In addition, the IRP will benefit from any record of decision, including factual investigation and findings, developed during the course of ICANN's internal reconsideration process. At the same time, the Committee recommends that complaining parties be allowed to come directly to the IRP in cases in which ICANN's internal reconsideration process has not been concluded within 30 days.]

Question 20: To what extent should the proceedings of the IRP be made public?

Principle 20: The IRP operating procedures, and all claims, decisions on claims, and the rationale for each decision made by the IRP shall be made public via the Internet; however, the IRP shall have the power to grant a party's request to keep certain information confidential, such as trade secrets. For any matters that the IRP determines not to disclose, the IRP's decision shall describe in generic terms the nature of the information and the reason for such nondisclosure.

[Comment 20: This principle embodies the goal of openness and transparency, while still recognizing that in certain rare cases, a complaining party may wish to submit confidential business information. Accordingly, the Committee believes that the IRP should have the authority to keep such information confidential, while identifying publicly the nature of the information and the reason for nondisclosure.]

Question 21: What powers should the IRP have?

Principle 21: The IRP shall have the authority to: (i) request additional written submissions from the claimant, the Board, the Supporting Organizations, or from other parties; (ii) declare whether an action or inaction of the ICANN Board was contrary to the Corporation's Articles of Incorporation and/or Bylaws; (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; and (iv) require the Board to act on the IRP's declaration at its next meeting or within 30 days, whichever is sooner.

[Comment 21: The Committee believes that the IRP should serve as a truly independent body whose authority rests on its independence, on the prestige and professional standing of its members, and on the persuasiveness of its reasoned opinions. The Committee does not believe that the IRP should have the authority to overrule or stay decisions of the ICANN Board; such a power would create a substantially less-accountable super-Board. Rather, the Committee believes that the ICANN Board should retain ultimate authority over ICANN's affairs - after all, it is the Board, not the IRP, that will be chosen by (and is directly accountable to) the membership and the supporting organizations. The role of the IRP, then, is to consider (and investigate, where appropriate) claims that the ICANN Board has violated its own Articles of Incorporation and/or Bylaws, to reach a reasoned and persuasive decision, and to make public its conclusion and the rationale for it. Such a decision will have to be taken seriously by the Board, which retains ultimate authority to act on its conclusions. Nevertheless, the Committee believes that it is important for the IRP to have the authority to force a rapid response from the ICANN Board of Directors, a concept encapsulated in (iv), above.]

Question 22: Will the Members of the IRP be paid for their services?

Principle 22: Initially, the Members of the IRP shall only be reimbursed for their expenses. In the future, subject to the availability of funds on the part of ICANN, the Members of the IRP should also be paid a reasonable fee for their professional services.

[Comment 22: The Committee believes that the Members of the IRP ought to be paid for their professional services; however, the Committee understands that sufficient funds may not presently be available. Accordingly, the Committee recommends that the panelists at least be reimbursed for their expenses.]

Question 23: How will the IRP conduct its proceedings?

Principle 23: In order to keep the costs and burdens of independent review as low as possible, the IRP will conduct its proceedings by email and otherwise via the Internet. Where necessary, the IRP may conduct proceedings by telephone.

[Comment 23: The IRP is expected to conduct its affairs by means of the Internet in order to keep costs to complaining parties and ICANN as low as possible. Accordingly, the IRP process should not entail face-to-face hearings or meetings.]

Question 24: Will the IRP be subject to conflict of interest restrictions?

Principle 24: The IRP will adopt, make public, and adhere to a conflicts of interest policy to ensure that IRP decisions are free from the influence of financial or other conflicts of interest.

[Comment 24: In order to promote confidence in the independence and impartiality of the IRP's decisions, the Committee believes that the IRP should develop and implement a conflicts of interest policy. That policy should be publicly available.]

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