[ALAC] ACTION/CPWG by 21 October - 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

Thu Oct 17 01:26:29 UTC 2019

*Please provide further input (if any) by 21 October 12:00 UTC.*

Dear CPWG colleagues,

At yesterday's CPWG call, it was decided that a final call for feedback be
made to this list on the proposed response to SubPro PDP WG on the question
of
*"Should ALAC have standing and funding to file an appeal (in Subsequent
Procedures)?"*
Further to the email trail below, I presented a revised proposed response
at the said CPWG call to address 2 additional points which were mentioned
in my explanatory email below - i.e. (1) reference to the contemplated
"loser pays" model and (2) standing to file.
Ref: Slide deck for Agenda item 7, 1st bullet at
https://community.icann.org/x/F4AzBw
<https://www.google.com/url?q=https://community.icann.org/x/F4AzBw&sa=D&usd=2&usg=AOvVaw3udIDoZJawofJ-_Ypw-7E_>

So, the proposed response now reads (key amendments underlined),

“The ALAC has no funding ability beyond that supplied by ICANN. It is not
feasible for the ALAC to raise funds to finance an appeal (or objection) or
to bear costs *under a “loser pays” model* if its appeal is unsuccessful.

Any withholding of ICANN funding for the 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 any contemplated limits to the number of appeals or quantum of ICANN
funding to ALAC in light of ICANN budgetary constraints, the ALAC believes
that its ICANN funding must commensurate with number of applications
received.

*The question of standing for the ALAC to file an objection and appeal is
beyond the scope of the Subsequent Procedures PDP WG. It is a question for
the ALAC to consider and the Dispute Resolution Service Provider and
Appeals Arbiter to determine in respect of an objection and appeal,
respectively*.”

If you have any (further) input to the draft above, please provide the same
by 21 October 12:00 UTC.

After that, I will finalize the response (if necessary) and relay the same
to SubPro PDP WG for their attention.

(I have noted earlier comments of support from Marita Moll, Evan Leibovitch
and Maureen Hilyard in a separate thread; and my apologies for
cross-posting)

Thank you,

Justine Chew
-----

On Sat, 12 Oct 2019 at 04:57, Jonathan Zuck <JZuck at innovatorsnetwork.org>
wrote:

> Agree
>
> Jonathan Zuck
> Executive Director
> Innovators Network Foundation
> www.Innovatorsnetwork.org
> ------------------------------
> *From:* GTLD-WG <gtld-wg-bounces at atlarge-lists.icann.org> on behalf of
> Justine Chew <justine.chew at gmail.com>
> *Sent:* Wednesday, October 9, 2019 5:07:44 PM
> *To:* CPWG <cpwg at icann.org>
> *Subject:* [GTLD-WG] [CPWG] 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
>
> 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 ICANN *[sic]* 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 quantum for or limits to such ICANN funding in
> light of ICANN budgetary constraints, ALAC believes that it must
> commensurate with number of applications received.*
>
> 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>
> 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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