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My comments are numbered to correspond to the Comment numbers set forth in
the Draft Principals for Independent Review.
The Draft Principals should be submitted to ICANN's supporting organizations
for review and comment. The lack of comment on these proposals suggests
that interested parties are overwhelmed with the amount of material for
review and comment (WIPO Recommendations, Policy for Geographic Diversity,
The Draft Principals are necessarily broad. However, on the "micro" scale,
I note that there does not appear to be a procedure for determining which
three of the nine panelists will be chosen to adjudicate a claim. There
should be some procedure for voluntary withdrawal or removal for conflicts
of interest and availability.
I suggest a four year term. Any term longer than four years would likely
discourage individuals outside of academic institutions from serving on the
If the IRP is independent, made up of quality professionals, and issuing
persuasive, reasoned opinions, then the IRP should be able to stay or
overrule decisions of the ICANN Board which violate ICANN's constituting
documents. I envision a "judiciary" type of power. I elaborate further:
A. An aggrieved party may not even want to spend the time and money to
appeal to the IRP if there is no action the IRP can take to redress a wrong.
The resulting apathy is likely to damage the credibility of ICANN as an
B. Corporations will not bother to use the IRP process because, as currently
drafted, the IRP has no real power. If an entity must use the IRP (e.g., in
order to exhaust its administrative remedies) an entity will do so.
However, aggrieved corporations (and other deep-pocketed parties) will sue
ICANN in any National court which can claim jurisdiction in order to obtain
concrete results. This will weaken ICANN as an independent body.
C. If the IRP can take no action against the ICANN Board, the Board will
likely be (or become) indifferent to claims made through the administrative
procedure as well as appeals made to the IRP. If the IRP can take action
against the Board, the Board will take the claims of aggrieved parties
seriously and will try to settle matters at the administrative level.
D. The Draft Principals would permit decisions of the Board which violate
ICANN's constituting documents to stand, if the Board wants such decisions
to stand. There is no way (other than national litigation) to force the
Board to abide by the Bylaws and Articles of Incorporation. Such a system
fails, if not in fact, then in the perception that it is unfair.
E. Giving the IRP the power to overrule or stay a decision does not create
a "substantially less-accountable super-Board". Such power would create a
substantially more accountable ICANN Board. The ultimate power would still
rest with the ICANN Board. For instance, if the IRP stays a decision of the
Board because it is contrary to the Bylaws, the Board, which is elected, can
amend the Bylaws so that the action is not conflicting.
These comments represent the personal views of the author.
Lance R. Griffin
Abelman, Frayne & Schwab