Draft Principles for Independent Review

Interim Report of the

Advisory Committee on Independent Review
With Addendum

 

IMPORTANT NOTICE This document is an advisory committee recommendation in draft form. It is NOT authoritative and is NOT to be relied on by any party. Submit comments on these recommendations to comment-irac@icann.org. All comments will be posted on the ICANN website at http://www.icann.org/comments-mail/comment-irac/maillist.html for public review and response.

 

Introduction
After study and deliberation, the Advisory Committee on Independent Review has drafted the following 11 principles, which are intended to serve as a framework for the independent review mechanism mandated in the ICANN Bylaws at Article III, Section 4(b). Subject to public comment and review, the Committee intends to submit these principles to the ICANN Board as an Interim Report to be considered at the Board's Berlin meetings, May 26-27, 1999. In response to public comments, the Committee has drafted an Addendum modifying one principle and suggesting options for strengthening another.
The draft principles have been framed as responses to key questions, and are accompanied by some explanatory comments.
 
Draft Principles
Question 1: What form should the "independent third party" required by the ICANN Bylaws take?
Principle 1: The "independent third party" shall be an Independent Review Panel (IRP) consisting of nine (9) members, any three (3) of which will adjudicate each claim.
[Comment 1: The Committee believes that independent review should be conducted by a body that is independent of the ICANN Board of Directors, both in its appointment and in its proceedings. Looking to the model of many appellate courts around the world, the Committee concludes that each claim for independent review should be resolved by a group of three panelists: a panel of one would significantly increase the risk of arbitrariness; a panel of two raises the possibility of deadlock; and a panel of four or more would likely become unwieldy and inefficient. At the same time, there are significant uncertainties about the nature and volume of future claims for independent review. Because IRP panelists will serve essentially in a voluntary capacity and may not always have adequate time to devote to the IRP, and because of the likelihood that some panelists may have conflicts of interest in some cases, the Committee believes that a group of nine should be appointed, from which three panelists will be drawn to resolve each individual claim. Moreover, a pool of nine panelists is sufficiently large to make possible meaningful diversity in geographic regions, legal systems, and so forth.]
Question 2: Who should appoint the members of the IRP?
Principle 2: The Members of the IRP shall be nominated by a Nominating Committee and confirmed by a 2/3 vote of the ICANN Board. The Nominating Committee shall be composed of individuals who are not members of the ICANN Board of Directors.
[Comment 2: In order to assure the independence of the IRP, the Committee believes that panelists should be chosen in the first instance by people who are not ICANN Directors. Looking to the model of the IETF, a small Nominating Committee composed of non-Directors appears to be an efficient solution. To ensure that nominated candidates command the respect and approval of a broad cross-section of ICANN's constituencies, the individuals selected by the Nominating Committee should be subject to the approval of a 2/3 supermajority of the ICANN Board.]
Question 3: Should the members of the IRP be chosen according to geographic or other diversity?
Principle 3: The members of the IRP shall be chosen primarily on grounds of competence and without reference to strict geographic or other quotas; at the same time, the Nominating Committee shall take account of various diversity factors, including diversity in geographic representation and diversity in legal systems, in making its choices.
[Comment 3: While the Committee considers diversity of geographic region and diversity of legal systems to be important components of a successful independent review body, the Committee concludes that strict quotas and/or complex formulas are unnecessary to achieve that goal. Rather, the Nominating Committee should be directed to consider such diversities in making its selections. The Committee believes that strict quotas and/or complex formulas will needlessly interfere with the Nominating Committee's primary directive, which is to choose panelists on the basis of professional competence, as evidenced by their professional records, accomplishments, reputations, and so forth.]
Question 4: For how long should the members of the IRP be appointed?
Principle 4: The Members of the IRP shall be appointed for terms of six years. The initial Members of the IRP shall have terms of staggered length: three initial Members shall be appointed for a 6-year term; three for a 4-year term; and three for a 2-year term. Thus, three Members' terms will expire every two years after the initial appointment.
[Comment 4: The Committee believes that the terms of IRP panelists should be long enough to allow them to learn the ropes and develop experience and competence on the job, and to promote a sense of independence in decisionmaking. At the same time, the Committee recognizes that a term of six years may discourage qualified individuals from assuming an essentially voluntary commitment of that length. The Committee looks forward to public input on this point.]
Question 5: Should independent review be available to challenge the Board's failure to act, as well as Board actions? That is, should a claimant be permitted to seek independent review on the ground that the Board had not taken some action specifically required by the Bylaws?
Principle 5: A claim 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.
[Comment 5: Because the ICANN Bylaws set forth duties as well as prohibitions, the Committee believes that independent review should be available in cases of failure to act as well as actions by the Board.]
Question 6: Who may file a claim for independent review?
Principle 6: 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.
[Comment 6: This principle restates the "affected party" standard set forth in the ICANN Bylaws, Art. III, Sec. 4(b). The Committee believes that the term "affected party" sweeps too broadly, however, as nearly every Internet user can be said to be affected in some quantum by nearly any decision of the ICANN Board. Accordingly, the Committee recommends that the conventional legal threshold of materiality be incorporated, keeping independent review available to those individuals or entities that have more directly been affected by the action (or failure to act) at issue.]
Question 7: Should independent review claimants be required to first avail themselves of ICANN's internal reconsideration process?
Principle 7: Individuals and entities must first exhaust ICANN's internal reconsideration process before filing a claim for independent review by the IRP. However, if ICANN's internal reconsideration process has not been completed within 30 days after the filing of a request for reconsideration, the complaining individual or entity may proceed directly to file a claim for independent review.
[Comment 7: The Committee believes that complaining individuals should first exhaust ICANN's internal reconsideration process before bringing their claim before the IRP. A requirement of exhaustion of internal remedies promotes efficiency by maximizing the odds that the ICANN Board will resolve disputes on its own before they reach the IRP. In addition, the IRP will benefit from any record of decision, including factual investigation and findings, developed during the course of ICANN's internal reconsideration process. At the same time, the Committee recommends that complaining parties be allowed to come directly to the IRP in cases in which ICANN's internal reconsideration process has not been concluded within 30 days.]
Question 8: To what extent should the proceedings of the IRP be made public?
Principle 8: All claims, procedures, and decisions of the IRP shall be made available via the Internet; however, the IRP shall have the power to grant a party's request to keep certain information confidential, such as trade secrets. For any matters that the IRP determines not to disclose, the IRP's decision shall describe in generic terms the nature of the information and the reason for such nondisclosure.
[Comment 8: This principle embodies the goal of openness and transparency to the maximum extent feasible, while still recognizing that in certain rare cases, a complaining party may wish to submit confidential business information. Accordingly, the Committee believes that the IRP should have the authority to keep such information confidential, while identifying publicly the nature of the information and the reason for nondisclosure.]
Question 9: What powers should the IRP have?
Principle 9: The IRP shall have the authority to: (i) issue advisory opinions on claims that an action or inaction of the ICANN Board was contrary to the Corporation's Articles of Incorporation and/or Bylaws, (ii) request additional written submissions from the claimant, the Board, the Supporting Organizations, or from other parties, and (iii) recommend that the ICANN Board stay any action or decision until such time as the Board reviews and acts upon the opinions of the IRP.
[Comment 9: The Committee believes that the IRP should serve as a truly independent body whose authority rests on its independence, on the prestige and professional standing of its members, and on the persuasiveness of its reasoned opinions. The Committee does not believe that the IRP should have the power to overrule or stay decisions of the ICANN Board; such a power would create a substantially less-accountable super-Board. Rather, the Committee believes that the ICANN Board should retain ultimate authority over ICANN's affairs - after all, it is the Board, not the IRP, that will be chosen by (and is directly accountable to) the membership and the supporting organizations. The role of the IRP, then, is to consider (and investigate, where appropriate) claims that the ICANN Board has violated its own Articles of Incorporation and/or Bylaws, to reach a reasoned and persuasive decision, and to make public its conclusion and the rationale for it. Such a decision will have to be taken seriously by the Board, which retains ultimate authority to act on its conclusions.]
Question 10: Will the Members of the IRP be paid for their services?
Principle 10: Initially, the Members of the IRP shall be reimbursed for their expenses. In the future, subject to the availability of funds on the part of ICANN, the Members of the IRP should be paid a reasonable fee for their professional services.
[Comment 10: The Committee believes that the Members of the IRP ought to be paid for their professional services; however, the Committee understands that sufficient funds may not presently be available. Accordingly, the Committee recommends that the panelists at least be reimbursed for their expenses.]
Question 11: How will the IRP conduct its proceedings?
Principle 11: 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 conduct proceedings by telephone.
[Comment 11: Like the rest of the ICANN universe, the IRP ought to conduct its affairs by means of the Internet. A key goal of the Committee is to keep costs to complaining parties and ICANN as low as possible; accordingly, the IRP process should not entail face-to-face hearings or meetings.]

ADDENDUM TO THE INTERIM REPORT

The Advisory Committee on Independent Review is pleased to have received a number of public comments on its Draft Principles for Independent Review. In response to the concerns expressed in some of those comments, the Committee recommends to the Board one modification to Draft Principle 9, and proposes (without specific recommendation) three alternative approaches to the question of the powers of the Independent Review Panel upon a finding that an action or inaction of the Board violates the Bylaws or Articles of Incorporation.

First, the Committee agrees with the suggestion that the authority of the IRP must be more clearly stated and thus more firmly rooted in the overall ICANN structure. The Committee recommends that Draft Principle 9 read as follows:

P9: The IRP shall have the authority to: (i) declare whether an action or inaction of the ICANN Board was contrary to the Corporation's Articles of Incorporation and/or Bylaws, (ii) request additional written submissions from the claimant, the Board, the Supporting Organizations, or from other parties, and (iii) recommend that the ICANN Board stay any action or decision until such time as the Board reviews and acts upon the opinions of the IRP.

Second, the Committee notes that several commentators have suggested that the IRP, upon a finding of a Bylaws or Articles violation, have a stronger ability to (i) freeze the status quo, and (ii) force a rapid response from the ICANN Board of Directors. Currently, Draft Principle 9 provides that the IRP shall have the power to "recommend that the ICANN Board stay any action or decision until such time as the Board reviews and acts upon the opinions of the IRP." Synthesizing public comment on this point, the Committee poses for the consideration of the Board three possible additional powers for the IRP, listed in descending order of strength:

(a) The power to immediately stay enforcement or execution of the contested decision of the Board.

(b) The power to stay enforcement or execution of the contested decision of the Board only if the Board has failed to act on the IRP's determination within 14 days.

(c) The power to require the Board to act on the IRP's determination at its next meeting or within 30 days, whichever is sooner.

The Committee has differing views on the best choice of the three, and so puts forward all three options for public comment and the consideration of the Board.