[Comment-Irac] Re: Even more issues

[Rod Dixon <rod@cyberspaces.org>]

Karl,

Is there time to add my comments to your draft, since you are submitting
on behalf of the IDNO?

Karl Auerbach wrote:
> 
> The report of the Independent Review Panel group is also up for comment,
> also with its own special comments e-mail address.
> 
> http://www.icann.org/santiago/irac-final-report.htm
> 
> (Again could be mistranscribed.)
> 
> An IDNO statement would be useful.
> 
> Here's what I sent...
> 
>                 --karl--
> 
> Comments on "Principles for Independent Review":
> 
> 1. (Principle 2):
> 
>    The members of the Independent Review Panel should *NOT* be subject to
>    confirmation by members of the body that will be reviewed.
> 
>    This means that the ICANN board should have no say whatsoever in the
>    choice of Independent Review Panel members, nor any veto, nor even any
>    vote in the matter.
> 
I propose that the GA elect the IRP members choosing from among the list
nominated by the Nominating Committee. Since GA members are most likely
to have claims to bring before IRP, it is fair to insist that the GA
directly vote to confirm the nominees.

Principle 3 should be striked from the Principles for Independent
Review. It is inconsistent with Principle 1, and, rather strikingly,
fails to achieve its intended goal of promoting consensus.

> 2. (Principle 4):
> 
>    The Supporting Organizations are highly *NON REPRESENTATIVE* of the
>    internet community.
> 
>    It is the proper sphere of the ICANN At-Large membership to determine
>    the nominating committee and to vote on the IRP members.

Principle 5 is too broadly defined. What does "officials of the DNSO
constituency" mean? 
> 
> 3. (Principle 13):
> 
>    The IRP will be not be a panel engaged in arbitration, it is a *REVIEW*
>    panel.  It's task is more of that of an appellate panel than an
>    arbitration panel or dispute resolution panel.  Thus Principle 13(b) is
>    inappropriate.
> 
I agree. Since Principle 13 states that provision (b) "must" be applied,
I think it should be stricken. If provision (b) were rewritten to say
that "the following factors should be considered, among others, in the
selection of nominees...," the provision would seem more appropriate.

Principle 14 is internally inconsistent. Geographic diversity should
always be relevant on International bodies; there is no way to end run
this fact. The nine members of the IRP should reflect this value in some
way.
Principle 17 states what kind of claim may be brought to the IRP without
noting what remedy (s) the IRP will be authorized to enforce or rule
upon. There should be an additional provision stating the type of relief
that may be granted on the type of claim asserted.

Principle 18 should include time limitations for filing a claim and for
the IRP to rule upon a claim.  
> 4. (Principle 19):
> 
>    ICANN's internal reconsideration process may itself be vague or
>    unpublished.  This principle could turn into an artificial barrier
>    of Dickensonian complexity.
I agree. Furthermore, who came up with 30 days? In Internet time that
could lead to extraordinary harm for a complaintant. Is there an
expedited process available, when necessary?

Principle 20 should also REQUIRE that the IRP issue written decisions
when denying the claim of a complaintant.
> 
>                 --karl--

-- 


Rod Dixon, J.D., LL.M.
Visiting Assistant Professor of Law
Rutgers University School of Law - Camden
rod@cyberspaces.org
http://www.cyberspaces.org