[ALAC] [CPWG] [registration-issues-wg] Subsequent Procedures: ALAC's right and ability to file Objections to applications/applicants in new round, and Appeals against any decision not in favour of ALAC
Marita Moll
mmoll at ca.inter.net
Fri Oct 11 07:37:33 UTC 2019
Hi Justine. I am in total agreement with your draft position. Your
excellent work on this difficult file is much appreciated.
Marita
On 10/11/2019 5:15 AM, Justine Chew wrote:
> Thank you very much, Carlton, for your comments.
>
> Might others in CPWG have input on this issue? In any case, the plan
> is to take this up again at next week's CPWG call to form a concrete
> response (if any)
>
> (Apologies for cross-posting)
>
> Thanks,
> Justine
> -----
>
>
> On Thu, 10 Oct 2019 at 22:35, Carlton Samuels
> <carlton.samuels at gmail.com <mailto:carlton.samuels at gmail.com>> wrote:
>
> Thanks Justine. Another yeoman's task accomplished with aplomb!
>
> In my view the right to file objections is established and the
> right to file appeals in those cases simply affirms the course of
> natural justice and thusly, should too be established. In similar
> vein, a right to file an appeal on an evaluation decision
> pertaining community-type applications for any ASP booted in the
> coming round would be in the At-Large's interest.
>
> That the caviling will coalesce around money is inevitable. I
> certainly think that if these were to be privileged via the SubPro
> WG recommendations, then the WG ought to follow the lines of the
> CCT RT Recommendation #35 and referenced broadly on
> Byelaw-mandated responsibilities rather than specifying AC's.
>
> -Carlton
>
> ==============================
> /Carlton A Samuels/
> /Mobile: 876-818-1799
> Strategy, Process, Governance, Assessment & Turnaround/
> =============================
>
>
> On Thu, Oct 10, 2019 at 6:38 AM Justine Chew
> <justine.chew at gmail.com <mailto:justine.chew at gmail.com>> wrote:
>
> Just to provide further context,
>
> When we speak of "Accountability Mechanism" in SubPro, we are
> referring to appeals mechanism essentially, and the idea of
> recommending the establishment of a new appeals
> mechanism/layer, which would apply strictly to any upcoming
> New gTLD Program round. Not to be confused with the existing
> Accountability Mechanism under the ICANN Bylaws, yet
> considering whether mechanisms like Request for
> Reconsideration and Independent Review Panels would be
> applicable to decisions arising under the Program and under
> what circumstances those would or would not be applicable.
>
> I would prefer to keep the question of whether a new appeals
> mechanism is desirable or not independent to the question of
> ALAC's right to file Objections and Appeals. The Objections
> mechanism is still going to be outsourced to third-party
> Dispute Resolution Service Providers (DRSP) for the new round
> because of reliance on their expertise, while the right to
> appeal will be likely involve such DRSP anyway.
>
> *Now, addressing strictly what applies to ALAC/At-Large in
> respect of _Objections_*,
>
> 1. In the 2012 round, there effectively wasn't any
> _substantive_ appeal mechanism available to ALAC (or any
> objector or applicant, for that matter) to appeal against an
> unfavourable decision by a third-party Objection DRSP. Under
> the 2012 AGB, ALAC was able to file Limited Public Interest
> Objections or Community Objections with funding provided by
> ICANN, and as pointed out by Alan, Olivier and Cheryl at the
> CPWG call of 9 Oct, ALAC filed 3 objections with respect to
> the .health string.
>
> 2. In the SubPro Initial Report of 3 July 2018, a question was
> posed to the community.
>
> /"/Q. 2.8.1.e.10 /ICANN agreed to fund any objections
> filed by the ALAC in the 2012 round. Should this continue
> to be the case moving forward? Please explain. If this
> does continue, should any limits be placed on such
> funding, and if so what limits? Should ICANN continue to
> fund the ALAC or any party to file objections on behalf of
> others?"/
>
>
> In response, vide its Statement of 3 October 2018 (see:
> https://community.icann.org/pages/viewpage.action?pageId=88573813),
> ALAC said,
>
> /"Yes, the ALAC believes strongly that ICANN should
> continue to fund all objections filed by us in the future
> rounds. As ICANN’s primary organisational constituency for
> the voice and concerns of the individual Internet user,
> the ALAC bears a responsibility as an established
> institution to pursue Limited Public Interest and/or
> Community objections against applications for New gTLDs
> which it believes does not benefit individual Internet end
> users as a whole./
> /
> /
> /The existing limits or conditions placed on funding for
> ALAC objection filing and Dispute Resolution Procedure
> (DRP) costs already form an arduous “stress test” to not
> only establish the validity of a contemplated Community
> objection, but also support for it within At-Large./
> /
> /
> /However, for ALAC objections to have proper effect as
> intended in the AGB, the ALAC proposes that guidance for
> DRSP panellists be substantial in respect of adopting
> definitions of terms – such as “community” and “public
> interest” – as well as questions on objector standing, in
> an effort to limit the ‘damage’ resulting from panellists’
> unfamiliarity with the ICANN Community structure,
> divergent panellists’ views, even values, on the same, and
> which conflict with the goals stated in ICANN’s Bylaws or
> GNSO consensus policy."/
>
>
> 3. In the SubPro PDP WG deliberations of all public comments
> received to the said Initial Report, questions again arose as
> to whether ALAC should continue to fund objections to be filed
> by ALAC in subsequent procedure, and if yes, to what extent.
> This is because there were public comments which basically
> questioned why ALAC should have "special rights" (standing
> versus funding) to file objections.
>
> In my opinion, *the question of ALAC's standing should not be
> considered in SubPro deliberations* -- that is a question for
> ALAC itself (considered through ALAC's INTERNAL process for
> determining whether an objection should be filed) and a
> question for the Objection DRSP (it has been the ground of
> dismissal for ALAC's prior objections ie "ALAC having no
> standing to object").
>
> *_On the question of funding, we now have a choice whether to
> reinforce the ALAC statement (as presented above) or consider
> recanting ie giving up the fight to keep the right to file
> objections in new rounds_*.
> _
> _
> *And addressing strictly what applies to ALAC/At-Large in
> respect of Appeals*,
> 4. In the SubPro PDP WG deliberations a consequent question
> was raised in mooting the recommendation for a new appeals
> mechanism -- if ICANN were to fund objections to be filed by
> ALAC in the new round, should ICANN also fund the costs of
> appeals to be filed by ALAC against any decision rendered that
> was unfavourable to ALAC (on a loser-pay model)?
>
> 5. This is where the discussion in the CPWG call of 9 Oct has
> progressed to. I noted that there is support for the
> retention of right to file objections which ought be
> accompanied by the right to file appeals. Therefore, a draft
> position was presented and which I have now refined for
> feedback / further refinement ...
>
> *The ALAC has no funding ability beyond that supplied by
> ICANN. It is not feasible for ALAC to raise funds to finance
> an appeal(or objection) or to bear costs if its appeal is
> unsuccessful. Any withholding of ICANN funding for ALAC to
> file objections and/or appeals would be tantamount to denying
> ALAC the ability to fulfill its duty under the Bylaws as
> the**primary organisational constituency for the voice and
> concerns of the individual Internet user. **As to quantumfor
> or limitsto such ICANN funding in light of ICANN budgetary
> constraints, ALAC believes that it must commensurate with
> number of applicationsreceived.*
>
> 6. An aside note -- the notion of appeals would also be
> available to appeal against _evaluation_ decisions, such as
> the ones made by panels for the Applicant Support Program and
> CPE.
>
> Apologies for the long email and thank you for your attention.
>
> Justine
> -----
>
>
> On Thu, 10 Oct 2019 at 00:11, Alan Greenberg
> <alan.greenberg at mcgill.ca <mailto:alan.greenberg at mcgill.ca>>
> wrote:
>
> I would like to raise the issue of the ALAC ability to
> object to applications as well as its ability to appeal
> such judgements.
>
> In the last round, the ALAC filed three objections with
> one of them later being withdrawn. All were to _.health_.
>
> _I believe that the ALAC needs to formally determine if it
> wants such objection rights in future gTLD rounds_. If we
> do want that right, I believe that we also need the right
> to appeal and in both cases, if we are not funded by
> ICANN, then the right is meaningless.
>
> I do not have copies of the objections we filed, but for
> the two cases where there were judgements (against us),
> they can be found at:
>
> https://newgtlds.icann.org/sites/default/files/drsp/17jan14/determination-1-1-1489-82287-en.pdf
> ;
> https://newgtlds.icann.org/sites/default/files/drsp/17jan14/determination-1-1-1684-6394-en.pdf
> .
>
> I believe that the ALAC decsiion should be based on the
> past history and on whether we truly believe that we will
> allocate appropriate resources to such a future action.
>
> In aid of that, I suggest the CPWG, and more importantly
> the ALAC, be quickly briefed by Olivier (who as ALAC Chair
> was the point person in the earlier objections) on the
> history and efforts associated with the three .health
> objections.
>
> I may be on today's call but if so, only for part of it.
>
> Alan
>
> At 06/10/2019 11:00 AM, Justine Chew wrote:
>> Dear all,
>>
>> Reference is made to the *SubPro Updates workspace*
>> <https://community.icann.org/x/6a_jBg>.
>>
>> The Subsequent Procedures PDP WG has started deliberating
>> on public comments received on the topic of
>> Accountability Mechanism on 1 Oct 2019. Deliberations
>> will continue on its next call on 7 Oct at 15:00 UTC.
>>
>> Here is an *update on the topic of Accountability
>> Mechanism as at 5 Oct 2019*
>> <https://community.icann.org/download/attachments/111390697/01.%20SubPro%20Accountability%20Mechanism%20%5BAppeals%5D%20as%20at%205.10.2019%20for%20CPWG.pdf?version=1&modificationDate=1570370108344&api=v2>.
>>
>>
>> Please note that while "Accountability Mechanism" is
>> better associated with mechanism per the Bylaws, namely
>> Request for Reconsideration, Independent Review Process
>> and ICANN Ombudsman, within the SubPro context,
>> "Accountability Mechanism" is about appeals for the new
>> gTLD Program -- looking at rights and forms of appeals
>> to decisions made during evaluation, objections, either
>> by ICANN Org/Board, external evaluators, external third
>> party Dispute Resolution Service Providers (DRSPs), as
>> well as in respect of post-delegation dispute resolution
>> procedures.
>>
>> CCT Recommendation #35 is picked up under this topic,
>> specifically sub-recommendation (3) "/Introducing a post
>> dispute resolution panel review mechanism/".
>>
>> As I alluded to at the CPWG call of 26 Sep under the
>> topic of Objections, there were public comments which
>> suggested that ALAC's ability to file Objections in
>> subsequent procedures be explicitly limited on account of
>> budgetary constraint.
>>
>> Along the same lines, a question was raised during the
>> last SubPro WG call as to whether AC's should be funded
>> by ICANN to file appeals. This is something which may
>> require addressing either through a position relayed to
>> SubPro WG momentarily and/or in any statement in response
>> to the call for public comments to SubPro WG's final
>> report in due course.
>>
>> On that note, I wish you a pleasant week ahead.
>>
>> Justine Chew
>> -----
>>
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