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- Reconsideration Requests – Method by which decisions of the Board of Directors or action of the staff can be appealed to the Board of Directors
- Independent Review Panel (IRP) – Method by which decisions of the Board or actions of the staff can be appealed to external reviewers.
The current mechanisms are very limited.
Reconsideration requests will only be considered if they involve a process problem; for example if they have a conflict with established policy or are based on incomplete or false information. It does not matter if they conflict with ICANN mission or core values. This has led to a situation where very few decisions are ever overturned after reconsideration.
The Independent Review Panel is administered by an international dispute resolution provider and is empowered to review any decision of the Board, which runs counter to the Articles of Incorporation or the Bylaws and that causes direct harm to an appellant. IRP recommendations are not binding on the Board. While the review panel is selected by the dispute resolution administrator, the ICANN Board of Directors must approve their selection and any operating rules and procedures the panel may establish. The current IRP may only establish its recommendations based on Board behavior; for example did they employ independent thought, engage in due diligence, and were they free of conflict of interest. The current IRP does not take into account issues where decisions made, even with the best of intentions and due diligence, run counter to the Articles or Bylaws. Additionally the current IRP uses a loser pays methodology which requires a substantial pre-payment by any prospective appellant, a deposit that can be as high as a million US dollars or more. Finally the current IRP does not allow for third party action, such as third party requests for review by the Supporting Organizations and Advisory Committees of the ICANN community on behalf of public interest. In order words, very little can actually be brought to an appeal, very few have standing to use the IRP, and even fewer can afford it.
The current redress mechanisms also include an Ombudsman’s office that is responsible for making non binding recommendations based on independent evaluation of claims of ICANN unfair actions.
The proposal, which is still in review and open to comment, is proposing a set of improvements.
The most important improvement is that the mechanisms have been retooled to serve accountability to the community, to the mission and to the values of ICANN as expressed in the Articles of Incorporation and the Bylaws. The redress mechanisms will no longer focus just on errors, omissions and bad behavior. When the accountability recommendations are approved and implemented the tools will exist to hold the Board and ICANN Staff to a standard that includes respecting ICANN’s core value of serving the global public interest.
The recommended scope of the Reconsideration Process would expand to include requests concerning Board and Staff actions or inactions that contradict ICANN’s Mission or Core Values. Among the improvements in the reconsideration process are that the ICANN Ombudsman will be responsible for the initial evaluation for all reconsideration requests, instead of being done by the ICANN legal team as is the case with current reconsideration requests. Additionally, provision will be made for the requester to rebut a proposed resolution before it is approved by the full Board of Directors.
The new Independent Review Panel will consist of a group of at least 7 members who will be selected for expertise, diversity and independence for a five year non renewable term which can only be terminated for an enumerated cause such as corruption or other malfeasance. In order to keep the expenses lower for those requesting an IRP review, the IRP will be paid for by ICANN, with appellants generally responsible only for their own legal expenses. Standing will include not only parties who have been harmed, but the ICANN community in cases where ICANN mission or core values or the powers of the community have been abrogated. While cases will be reviewed by a 3 member decisional panel, appellants will have the opportunity to make a process-based appeal to the full panel if needed. In cases where the IRP determines that the ICANN Board or Staff violated the Articles or Bylaws of ICANN, their decision will be binding on the ICANN Board.
In addition to changes in scope and process, each of the mechanisms will also have transparency provisions requiring the publication of reasons for decisions and dismissals.
If approved and implemented properly, these new redress mechanisms will provide a vast improvement in ICANN accountability. All readers are invited to participate in the current review, and are encouraged to submit comments supporting these changes. The ability to have reconsideration requests that are fair and can take substantive issues of ICANN mission, core values and global public interest into account is important. A financially accessible IRP that can make binding decisions represents the opening of a new age of ICANN accountability.