Proposed Independent Review Policy
[NOTE: This proposed Independent Review Policy has been drafted by the ICANN staff and is posted for public review and comment. Comments are actively solicited, and should be posted on the ICANN Public Comment Forum. Comments should be submitted in advance of the Board'sCairo meetings, 9 and 10 March 2000. As a proposal, this document is not authoritative and should not be relied on in any way. For more background information on independent review, click here.]
This Independent Review Policy carries out the provisions of Article III, Section 4(b) of the ICANN Bylaws.
The mission of the Independent Review Panel ("IRP") is to compare contested actions of the ICANN Board to the Bylaws and Articles of Incorporation and to declare whether the ICANN Board has acted consistent with the provisions of those documents. The IRP is also responsible for reviewing determinations regarding the presence of a consensus on which an adopted policy is based, to the extent provided in agreements between ICANN and third parties. The IRP should act in an open and efficient manner.
3. Independent Review Panel
3.1. Requests for independent review are referred to the IRP, which will consist of nine (9) members.
3.2 Subject to the approval of the ICANN Board, the IRP will draft and implement its own operating procedures.
3.3 Each request for independent review is adjudicated by a three-member panel of the IRP.
3.3.1 The IRP will determine a procedure for assigning IRP members to individual panels. The procedure should be primarily random, but may take into account the availability of IRP members at any given time.
3.4 The IRP has the authority to: (i) request additional written submissions from the party seeking review, 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 opinion 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.
3.5 The members of the IRP are appointed for terms of four years.
3.5.1 The initial members of the IRP will 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.
3.6. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the IRP.
3.6.1 For purposes of this Policy, the group of individuals ineligible to serve on the IRP includes: 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 constituencies councils and administrative committees; and elected officers of the DNSO constituencies.
3.7 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 hold meetings by telephone.
3.7.1 Members of the IRP are eligible for reimbursement of out-of-pocket expenses directly relating to the work of the IRP, including necessary telephone expenses.
3.8 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.
4. Nominations for the IRP
4.1. The members of the IRP are nominated by the IRP Nominating Committee, and must be confirmed by a 2/3 vote of the ICANN Board.
4.2 When more than one IRP vacancy is to be filled at the same time, the ICANN Board will take a single vote on the group of nominees selected by the IRP Nominating Committee.
4.3 When a vote to confirm a nominee or group of nominees wins the support of fewer than two-thirds of the ICANN Board, the IRP Nominating Committee must, within 14 days, present a new nominee or group of nominees, at least one member of which must be different from the group of nominees previously presented to the Board.
5. IRP Nominating Committee
5.1 The IRP Nominating Committee consists of two individuals appointed by each of the ICANN Supporting Organization councils, as defined in the ICANN Bylaws.
5.1.1 Once it has been fully elected and seated, the At Large Council will also name two individuals to the IRP Nominating Committee.
5.2 The Supporting Organization councils should select as members of the IRP Nominating Committee individuals who are likely to be able to find, evaluate, and recruit IRP nominees who meet the criteria set forth in this Policy.
5.3. Individuals holding an official position or office within the ICANN structure are not eligible to serve on the IRP Nominating Committee.
5.3.1 For purposes of this Policy, the group of individuals ineligible to serve on the IRP Nominating Committee includes: 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 constituencies councils and administrative committees; and elected officers of the DNSO constituencies.
5.4 The IRP Nominating Committee will be convened only upon notification from the ICANN Board that a vacancy exists on the IRP.
5.5 The members of the IRP Nominating Committee will be appointed for three-year terms, except that half of the members initially appointed will be appointed for two-year terms.
5.5.1 In the initial round of appointments, each Supporting Organization council will appoint one IRP Nominating Committee member to a three-year term, and one member to a two-year term.
5.6 The Supporting Organization councils may re-appoint members of the IRP Nominating Committee.
5.7 The IRP 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.
5.8 The IRP Nominating Committee should undertake an active search and affirmatively recruit appropriate candidates to serve on the IRP.
5.9 The IRP Nominating Committee must forward its nomination(s) to the ICANN Board of Directors within 45 days of receiving notice that a vacancy has arisen.
5.10. The IRP Nominating Committee will conduct its proceedings by email and otherwise via the Internet. When necessary, the IRP Nominating Committee may hold meetings by telephone.
5.11 The members of the IRP Nominating Committee will serve as volunteers and will not be compensated.
5.12 The IRP Nominating Committee must nominate individuals who meet the following criteria:
5.12.1 A nominee to the IRP should be a person of high professional standing and accomplishment.
5.12.2 A nominee to the IRP should be (i) a current or former judge, and/or (ii) an individual with legal training who would qualify for judicial appointment and who has experience conducting arbitration or a similar dispute resolution proceeding.
5.12.3 A nominee to the IRP must hold no other office or position within the ICANN structure.
5.13 The IRP Nominating Committee will make nominations primarily on grounds of competence, experience, and accomplishment, and without reference to strict geographic or other quotas. At the same time, the IRP Nominating Committee will take account of various diversity factors, including diversity in geographic representation and diversity in legal systems, in making its choices.
5.14 No later than two years after it begins operation, the ICANN Board of Directors will review and evaluate the IRP nomination and selection process, providing opportunities for public notice and comment by the Internet community.
6. Requests for Independent Review Under Articles and Bylaws
6.1 A request 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.
6.2 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.
6.3 Individuals and entities must first exhaust ICANN's internal reconsideration process before submitting a request for independent review by the IRP.
6.3.1 If ICANN's internal reconsideration process has not been completed within 45 days after the filing of a request for reconsideration, the complaining individual or entity may proceed directly to file a request for independent review.
7. Requests for Independent Review of the Presence of a Consensus
7.1 The IRP will also consider requests for independent review submitted under written agreements entered by ICANN which provide for review of the issue of the presence of a consensus by an Independent Review Panel established under ICANN's bylaws. These agreements include the Registry Agreement entered between ICANN and Network Solutions and Registrar Accreditation Agreements entered between ICANN and registrars after November 4, 1999.
7.2 Requests for independent review on the issue of the presence of a consensus may be submitted by any party to one of the agreements providing for for such review, provided the party is required by the agreement to comply with a policy based on the consensus. Requests must be submitted within the time allowed in the agreement to which the requestor is a party.
7.3 The IRP will base its decision on the written report and supporting materials (including all substantive submissions to the Supporting Organization relating to the proposal) that (i) document the extent of agreement and disagreement among impacted groups, (ii) document the outreach process used to seek to achieve adequate representation of the views of groups that are likely to be impacted, and (iii) document the nature and intensity of reasoned support and opposition to the proposed policy.
8. Openness and Transparency
8.1 The IRP operating procedures, and all claims, decisions on claims, and the rationale for each decision made by the IRP will be made public via the Internet.
8.2 The IRP may, in its discretion, grant a party's request to keep certain information confidential, such as trade secrets.
8.2.1 For any matters that the IRP determines not to disclose, the IRP's decision will describe in general terms the nature of the information and the reason for nondisclosure.