Sub-Group Members: Avri Doria, Becky Burr, David McAuley, Edward Morris, Finn Petersen, Greg Shatan, Jonathan Zuck, Jorge Villa, Kavouss Arasteh, Matthew Shears, Maura Gambassi, Rafael Perez Galindo (12)
Staff: Bernard Turcotte, Berry Cobb, Brenda Brewer
Apologies: James Gannon, Pär Brumark, Paul Rosenzweig
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
- Adobe Connect recording is available here: https://icann.adobeconnect.com/p8pen2bdrad/
- MP3 recording is available here: http://audio.icann.org/gnso/gnso-wp2-22jul15-en.mp3
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.
- Purpose of the call is IRP
KA - IRP as proposed could interfere with the GAC advice to the Board.
BB - This is a difficult issue.. Getting this right is going to be complicated - they have to be right. Deliverables for WS1 for IRP would be the rules plus a plan
for implementation. The implementation committee should be a subset of the CCWG and should be augmented by international constitutional law experts..
DM - Supports. Replace constitutional with governance.
GS - Issue with the use of constitutional in this context.
BB - Has no issue removing this term.
GS - would suppor this.
BB - This is IRP+ - where the plus relates to the member's rights.
GS - why do we need international legal experts?
DM - Standard should be uniformly stated. Stat rights of the sole member should mesh with the Bylaws.
BB - good point - we will refer tot he rights of the sole member as described in the Bylaws
AD - International is critical - Bylaws have to be interpreted with an international perspective.
BB - Good point
BB - section 2 Standing - Should this state that ICANN by contract should not use a contract to deprive anyone of its rights.
KA - Issue vs the term take advantage of for GAC.
BB - this is not derogatory
DM - by contract not deprive a party to go to IRP
Both parties going to IRP should sign a document saying they will abide by the results and not go to courts.
EM - same, supports.
BB - KA is the take advantage issue ok now.
BB - RPG concern regarding standing, BB believes this should be ok.
BB - Selection process - issue around Board participation, need to be distinct from standard inner nation arbitration.
BB - In Paris discussed for selecting a firm for administrative support to find candidates. Specialized head hunting firm internationally that would work with the community to get applications. The community would select the candidates + and overflow pool. this could be an early part of WP2. The proposed candidates would go to the Board which could object for specific reasons.
DM - Judicial headhunter - Some legal experience is good but non lawyers can make good arbitrators. Worries that the panel will only be lawyers. Would like wider consideration.
BB - the first report mentioned panelists who have legal expt. + additional areas. There are people who have helped set up courts which we will need. to avoid making mistakes. Does not disagree that some panelists who could not be lawyers but it would seem logical for lawyers.
Matthew Shears: I agree with David's point that the skill set should be broadened and having individuals with arbitration skills would be useful
BB- should we change the defn for panelist that is in place since the beginning..
GS - include arbitration.
BB - Selection process is ok,
BB - Diversity is an issue - some have suggested in the PC that there should not be more than 2 pann. from one region.
DM - Small group therefore easy to fill it from all regions and as such is sensible.
GS - Hard limit is worrisome. Diversity has to be secondary to skill set., qualifications has to be first.
EM - Support GS - Concerned about legal system diversity.
BB - Hearing reasonable efforts + a soft Goal of not more than 2 from the same region.
BB - 7 member standing panel. ICANN raised questions regarding capacity or limits. BB mentioned possibility of an overflow pool that would be prevetted panelists that would only be paid if called upon. All ok with this? No objections.
BB - KA about the GAC concerns. BB reminds that IRP ruling will not determine how to fix a violation. This opens an opportunity for discussion between the parties..
BB - USG has noted that there should be a test period.
GS - Decisions o IRP cannot indicate how to amend?
does not seem appropriate to limit the panel in this way.
BB - not just yes or no, the rationale to support this is part of the record.
BB - KA notes the GAC has established a wg on this topic. Open to working with them. This being said the community is strongly in favour of Binding.
Finn Petersen, GAC - DK: DK has said, that “The new mechanisms must ensure that the Board is bound to follow the ruling of the IRP”
DM - US idea of testing is good just uncertain how that would work. Binding is good.
GS - Binding issue has broad support - it can be appealed to the full panel and how that is done.. Recourse in the courts has to be clarified.
BB - There is a possibility of appeal. BB notes that KA does not want to be a hostage of a California court.. Plaintiff winning IRP could go to court to get it
BB - Terms,independence from ICANN pre and post.
DM - 2 years pre and post. Term 3 years? Does it need a review to ensure it sticks to what it should be doing.
BB - Good point and related to the USG requirement for a test period. BB prefers 4 years with staggered terms.
DM 4 years is goo
BB 4/2 is good.
KA - IRP request on same topic of an ongoing IRP request.
BB -consolidation is important. Doing both could lead to diverse decisions.. other 4 parties should be able to join ongoing process - this is for the implementation group.
BB - Settlement can involve formal mediation.
BB - Decision already covered.
BB - binding
David McAuley: Will a 1 member, non-binding panel be available if parties elect?
Becky Burr: yes David
arasteh: But one member panel shall not be binding
EM - does not like CEP
BB - some really like it
EM - it is opaque to all including affected parties.needs to be more transparent.
BB - Good idea for for WS2
GS - CEP has not been reviewed - we may want to do this. CEP as a real mediation service would be very good. Many comments that the experience of the CEP was not good.
CEP review should be done in WS2.
BB - Good suggestion
BB - Subgroup for impl. details. WS1 just needs the Bylaws language.
BB - Binding vs non-Binding and what to do about real BONEHEAD decisions? Reviews.
DM - Narrow community power to say THIS DECISION MAKES no sense. Panels once in a while come out with CLUNKERS.
BB - Revise and expand this as pe3r this discussion to create the report. I will do this anc circulate.
BB - there are a lot of details that have to be completed. Implementation sub-group is going to be a big group.
KA - support this approach
KA - Repeats GAC issue vs Binding
BB - Is the issue already addressed with IRP decision not specifying how ICANN hs to address or implement? and the GAC could provide advice to ICANN on how to implement
or address the binding request.
GS - IRP should be able to challenge GAC backed advice to a Board decision.
BB - I hink its not about it being binding or not - if a decision comes down the GAC wants to be able to enter in the consultation..
BB - Scenario - GAC provides advice to Board, refused, there is consultation and an agreement is reached. Someone could claim that decision violates the
Bylaws and goes to IRP. The panel could say the plaintiff is correct and the decision violates the bylaws. There is nothing that prevent the GAC from submitting
further advice to the Board on this and then there could be further negotiations.
KA - yes but the Board would need to continue consultation with the GAC.
BB - this is very workable. Thew IRP judgement should not block further negotiations between the Board and the GAC.
end of meeting
Brenda Brewer: (7/22/2015 05:23) Welcome to WP2 Meeting #10 on 22 July at 11:00 UTC! Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards
Brenda Brewer: (05:52) Hi Becky!
Becky Burr: (05:53) hi brenda - i just sent a different doc that i'd like to work from
Brenda Brewer: (05:55) I will upload that doc. Thanks!
Brenda Brewer: (05:56) Kavouss is on the audio line now.
Bernard Turcotte Staff Support: (05:57) hello all
David McAuley: (06:00) Good morning all
Becky Burr: (06:00) hello all - we'll wait a minute or two for others to join
Bernard Turcotte Staff Support: (06:10) Please mute you mikes
Greg Shatan: (06:14) Good point, David.
David McAuley: (06:16) Thanks Greg, abd I agree w/Avri re international skills in looking at this
Bernard Turcotte Staff Support: (06:16) Just t be lcear trhe CWG has formally requested that IRP not apply to ccTLDs
David McAuley: (06:16) old
David McAuley: (06:16) sorry, didgy mute button
David McAuley: (06:16) dodgy, that is
Greg Shatan: (06:17) Bernie, that was just for delegation/redelegation issues, not generally....
Bernard Turcotte Staff Support: (06:18) @Greg - correct
Avri Doria: (06:18) apologies for being late, was giving a presentation up until the hour.
Bernard Turcotte Staff Support: (06:19) But for ccTLDs that actually covers a majority
Greg Shatan: (06:19) "take advantage of" just means "use".
Greg Shatan: (06:20) Nothing more.
Avri Doria: (06:20) not necessarily, but perhaps creative ambiguity ...
Greg Shatan: (06:20) In this case, nothing more.
Greg Shatan: (06:20) If I take advantage of you - yes.
Greg Shatan: (06:20) If I take advantage of a pitcher of water - no.
Rafael Pérez Galindo: (06:21) Hi ALl
Rafael Pérez Galindo: (06:21) My mike not functioning
Rafael Pérez Galindo: (06:22) Something that raises concerns for us
Rafael Pérez Galindo: (06:22) The fact that only already “materially affected” parties have a standing in the IRP could prevent stakeholders from using the IRP in case that damage or harm has not been produced yet.The aforementioned rule can prevent governments from filing an IRP. In circumstances where an action or inaction by ICANN affects compliance with local laws, governments should be able to challenge ICANN decisions through an IRP. The government as such is not materially harmed and will never be, but they have a duty to preserve the applicability of their national laws and should have the chance of doing so through the IRP.Hence, we propose to expand the scope of legitimacy to file an IRP to a “prospectively affected” party which demonstrates that severe harm will likely be done to the interests it defends, although this damage is not suffered yet.
Rafael Pérez Galindo: (06:22) Sorry for the long post ....
Matthew Shears: (06:29) I agree with David's point that the skill set should be broadened and having individuals with arbitation skills would be useful
Greg Shatan: (06:30) It may be a given, but it should still be stated.
Matthew Shears: (06:30) +1 Greg
David McAuley: (06:30) So not much support, suggest we move on
Jonathan Zuck (IPC): (06:32) some regions are pretty big...
Jonathan Zuck (IPC): (06:33) we could have big delays associated with a hard quota. Perhaps a time box to acheive diversity?
Matthew Shears: (06:33) While diversity is important I would support reasonable effort approach - skill set is key
arasteh: (06:34) Beckie
David McAuley: (06:34) Reasonable efforts seems fine, on other hand I doubbt we will have any difficulty meeting regional diversity in this matter
arasteh: (06:35) We ned to ensure that the rights og GAC and the obligation of ICANN to process GAC ADVICE ARE RECOGNIZED AND CONFIRMED
arasteh: (06:35) mOREOVER, THE OBLIGATUION OF bOARD TO ENTER INTO NEGOTIATION WITH gac IN CASE OF REJECTION OF ITS ADVICE MUST BE MAINTAINED
Greg Shatan: (06:37) How do you define GAC Advice?
arasteh: (06:37) tHE USE OF irp FOR SUCH ADVICE IS SUBJECT TO DECISION OF gac AND BINDING ISSUE SHOULD NOT GET INTO A SITUATION IN WHICH THE OBLIGATION OF THE bOARD TO NEGOTIATE WITH gac TO FIND A SATISFACTORY SOLUTION SHOULD BNOT BE ADVERSELY AFFECTED BY irp
arasteh: (06:37) Pls confirm that
David McAuley: (06:37) pre-vetted is fine
Matthew Shears: (06:37) agree
Matthew Shears: (06:39) how many of the pre-vetted 7 are in the standing committee - and how are the 3 panellists be chosen from the 7?
Matthew Shears: (06:39) sorry standing panel
Becky Burr: (06:41) 7 are the standing panel. one member chosen by each party, those 2 select the 3rd. Pre-vetted pool could be larger
arasteh: (06:41) GAC HAS ESTABLISHED A WORKING gROUP TO EXAMINE THE CASE THA i raised and I AM SURE THEYS WILL COME BACK TO ccwg soon
arasteh: (06:41) Grace
arasteh: (06:42) pls advise whwether therte is any GAC REPRESENTATIVE IN THE CALL
Matthew Shears: (06:42) thanks Becky - is that written in more detail somewhere or does it need to be captured here?
arasteh: (06:42) i see they are quiet and silent which is surprising
Becky Burr: (06:42) i will capture here
arasteh: (06:43) Is Olga Cavali in the call pls?V
Brenda Brewer: (06:44) Olga is not on this call.
Finn Petersen, GAC - DK: (06:44) DK has said, that “The new mechanisms must ensure that the Board is bound to follow the ruling of the IRP”
arasteh: (06:44) Beckie
arasteh: (06:45) May you pls adise whether Board can invoke IRP?
Jonathan Zuck (IPC): (06:45) pretty broad support for binding
arasteh: (06:46) irp IS ENTIRELY DIFFERENT FROM DISPUTE RESOLUTION AND THUS THE LATTER CAN NOT REPLACE THE FORMER.
Becky Burr: (06:46) who would the Board invoke IRP against? The question is whether or not ICANN violated its bylaws. if it is staff action in question, the Board can handle that more directly
Jonathan Zuck (IPC): (06:46) +1 Becky
David McAuley: (06:46) Good point Becky
arasteh: (06:47) uNFORTUNATELY ONE bOARD mMEMBER DURING THE gac 53 MENTIONED THAT dISPUTE rESOLUTION COULD PROPERLY ADDRESS AND REPLACE irp PROCESS TO WHICH i DISAGREE
arasteh: (06:48) WHAT WE DO NOT WANT IS TO BE HOSTAGE OF cALIFORIAN court
David McAuley: (06:49) And that court, Becky, need not be in California would it - could be any court w jurisdiction over icann
arasteh: (06:49) Dear Grtace,
Greg Shatan: (06:50) Even in the US, we would almost certainly be in a US federal court, not a California State court.
arasteh: (06:50) Pls kindly advise whether any of 5 GAC member to CCWG ARE ATTENDING THIS CALL
arasteh: (06:52) Pls kindly advise whether any of 5 GAC member to CCWG ARE ATTENDING THIS CALL`Iwish to be clear that I have no issue agaist Californian Court .$
arasteh: (06:52) What I wish to say the any court could be elected or used and not neceessirily a Cafornian Court$
Greg Shatan: (06:53) No more than 2 years post-term.
Greg Shatan: (06:54) There should be a periodic review of the IRP function.
David McAuley: (06:54) 4 years would work
Matthew Shears: (06:54) + 1 Greg and David
David McAuley: (06:54) 4 years for term that is
David McAuley: (06:54) i like 4/2
arasteh: (06:54) During the Paris meeting I raised the question about the criteria that an IRP could be invoked and no IRP could be invoked on any issue which is peding by a previous inokation of an IRP
Greg Shatan: (06:54) 2 years was for post-term "independence."
arasteh: (06:56) IRP is a complex process and could take a long time to be processed
Becky Burr: (06:56) correct greg
arasteh: (06:56) Thus its invocation must follow certain pre determined criteria
David McAuley: (06:57) Maybe these kinds of questions are for the sub-group but it is a good question
David McAuley: (06:57) questions re consolidation that is
arasteh: (06:58) Dearv Beckie
arasteh: (06:58) could you pls reply to my question
David McAuley: (06:59) Will a 1 member, non-binding panel be available if parties elect?
Becky Burr: (06:59) yes David
arasteh: (06:59) But one member panel shall not be binding
David McAuley: (06:59) thanks Becky
Becky Burr: (07:00) I think we did respond Kavouss - we think it is a very good question to be addressed by subgroup
arasteh: (07:01) To whom the Member of IRP are accountable?
Becky Burr: (07:02) to the community and to the board. just as any judiciary is accountable to a legislature and/or the executive branch
David McAuley: (07:03) and community periodic review adds to IRP accountability as well
Edward Morris: (07:03) + 1 Greg
Becky Burr: (07:03) one member panel is not binding
Jonathan Zuck (IPC): (07:04) more like a trashcan with a "complaints" sign on it
David McAuley: (07:04) good one Jonathan
arasteh: (07:05) bECKIE
David McAuley: (07:05) and procedural details as well
arasteh: (07:06) Several existing arrangement may not be compatible with what we are discussing
Becky Burr: (07:08) not sure i understand what you are referring to Kavouss
David McAuley: (07:11) OK, well said Becky
David McAuley: (07:13) agreed
David McAuley: (07:15) I doubt this would happen, but if GAC and ICANN negotiate a solution that vilates bylaws to detriment of a party that party can invoke IRP
David McAuley: (07:15) violates, that is
Becky Burr: (07:16) correct, David
Greg Shatan: (07:17) If the Board makes a decision as a result of GAC advice (with or without a consultation), that decision can be challenged through an IRP now. That can't change.
Greg Shatan: (07:19) IRP can only challenge a Board decision.
David McAuley: (07:19) As restated by Kavouss, I agree IRP cannot block GAC and ICANN from negotiating over rejected consensus advice
Greg Shatan: (07:20) The consultation process itself is not within reach of the IRP.
David McAuley: (07:20) +1 Greg, better stated
Greg Shatan: (07:20) David, I thought yours was better stated, so a combination of the two might be even better.
Finn Petersen, GAC - DK: (07:21) GAC and the Board cannot agree on matter outside the Bylaws
David McAuley: (07:21) agreed, +2
David McAuley: (07:22) Good point @Finn, but I worry a bit about instances where issue is not all that clear
Finn Petersen, GAC - DK: (07:23) @David - that we have the IRP
Greg Shatan: (07:23) Of course they can. They may think they are not doing so, but the IRP may prove them wrong.
Greg Shatan: (07:24) I expect that the Board NEVER thinks they are violating the Bylaws.
David McAuley: (07:24) Agreed @Finn, thank you. Good discussion.
Greg Shatan: (07:24) Usually they are right. But clearly not always.
David McAuley: (07:25) WP2 next call is 27th, right
Jonathan Zuck (IPC): (07:26) The road to hell is paved with the intention not to violate the bylaws...
Matthew Shears: (07:26) ;)
Brenda Brewer: (07:26) Next WP2 Meeting – Monday 27 July 2015 from 13:00 – 14:30 UTC
David McAuley: (07:26) thanks Brenda
Brenda Brewer: (07:27) :)
David McAuley: (07:27) good phrase Kavouss
Jonathan Zuck (IPC): (07:27) +1 Kavouss
Matthew Shears: (07:27) thanks Becky, all
David McAuley: (07:27) Many thanks Becky
Jonathan Zuck (IPC): (07:27) Thanks!
Edward Morris: (07:27) Thanks very much Becky and everyone.
Greg Shatan: (07:27) Bye, all.