Reconsideration Request 02-4
Recommendation of the Committee
Date: 24 June 2002

Recommendation

Background

On 12 April 2002, Ethan Katsh submitted reconsideration request 02-4. In that request, Professor Katsh requests that the Board reconsider its adoption of resolutions 02.46 and 02.47. Those resolutions excused the Independent Review Nominating Committee from further service (although it had not completed formulating a slate of nominees for the Independent Review Panel) and referred 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.

Analysis of Request for Reconsideration

In his request, Professor Katsh asserts that he is a "person affected by an action of the Corporation" eligible under Article III, Section 4(a) of the ICANN bylaws to seek reconsideration. He bases this assertion on the following argument:

The Board's action in disbanding the Independent Review Nominating Committee clearly affects me by preventing me for the foreseeable future from appealing a Board action that I believe conflicts with ICANN's bylaws. Such an appeal might have involved the very Board action that is the subject of this reconsideration request.

The reconsideration committee has significant doubts regarding this argument because (in addition to its bootstrapping nature) it does not appear to give the proper meaning to the phrase "affected by an action of the Corporation" in the bylaws. Under the same logic every person who might someday have occasion to invoke an ICANN procedure could seek reconsideration of any Board action affecting that procedure. Accepting such speculative, future effects seems to make the "affected" phrase of the bylaw provision meaningless. Despite these doubts regarding whether the bylaws entitle Professor Katsh to seek reconsideration of the resolutions, however, the committee believes that the request for reconsideration should be entertained because it raises an issue of broad interest.

Professor Katsh's request is based on two grounds. First, he asserts that the Board's action is inconsistent with ICANN's responsibilities under its Memorandum of Understanding with the U.S. Department of Commerce. Second, he claims that the action was without factual basis.

Initially, it is important to note that reconsideration of Board actions (unlike reconsideration of staff actions) has a restricted scope that does not envision revisiting arguments already considered by the Board. As we stated in our recommendation on request 01-7 (Hasbrouck):

When evaluating requests for reconsideration of Board actions, the reconsideration committee focuses on whether the process followed was fair and appropriate and whether the Board acted in an informed manner. The reconsideration process is neither intended nor suited for re-arguments on the merits.

The challenged resolutions on independent review were adopted based on the General Counsel's Report on Status of Independent Review Nominating Committee. Due notice of the Board's consideration of the issue at the Accra public Board meeting was given. An extensive discussion was held by several Board members. Indeed, the reconsideration request does not allege any infirmity in the process by which the matter was considered. At most, it reflects a difference in judgment between Professor Katsh and the Board as to the prudent course to take in the circumstances. That difference in judgment alone is not a proper ground for reconsideration.

Professor Katsh asserts, in view of resolutions 02.46 and 02.47, "[v]ery clearly, implementation [of independent review] has been halted." We believe that this misreads the effect of the resolutions: they are a positive step toward finding an appropriate mechanism for independent review, not an abandonment of the concept. Since the referral of the independent-review issues to the Committee on ICANN Evolution and Reform, that committee has actively moved forward to investigate appropriate independent-review mechanisms. On 9 May 2002, it issued its Working Paper on the ICANN Structure and the Nominating Committee Concept, which analyzed the independent-review issues and sought community comments regarding them. The topic of appropriate independent review has been a topic of significant community analysis and discussion. For example, in response to the Committee on ICANN Evolution and Reform¹s call for comments, the DNSO Names Council has formulated a draft advisory document. The matter is to be further considered by the community and the Board at the ICANN meeting in Bucharest from 24-28 June 2002.

In view of this progress it appears that the Board¹s referral of these issues to the Committee on ICANN Evolution and Reform has resulted in a significant step forward toward an independent-review mechanism on the basis of community input.

Recommendation

For these reasons, the reconsideration committee recommends that the Board take no action on reconsideration request 02-4.