[ALAC] Selection Process for Bylaws IRP Standing Panel

Mon Jul 20 09:25:54 UTC 2020

Hi Maureen,
You are a genius.
Or should I say sometimes a genius. Lol.
AK

On Mon, 20 Jul 2020, 08:00 Maureen Hilyard, <maureen.hilyard at gmail.com>
wrote:

> Interesting discussion.
>
> This was a response I gave to the SO-AC Chairs following David's initial
> request in May. It was based on consultation with people who are far more
> knowledgeable about the topic than myself.  And Alan has pointed out, that
> it might aid the current discussion.
>
> Hi All,
>
> Given that I had not been heavily involved in the CCWG Accountability or
> the IRP activities, I took the opportunity to consult with the past ALAC
> Chairs, Cheryl Langdon-Orr, Olivier Crépin-Leblond and Alan Greenberg.
>
> I agree with Keith that the current IOT is likely to be fully occupied but
> more importantly is not constituted to represent the AC/SOs which are
> Bylaw-mandated to select the Standing Panel. Although David said that the
> AC/SOs “helped populate” the current IOT, we could find no actual record of
> whether any of the IOT members were formally endorsed by any AC or SO.
> Certainly the ALAC did not do so.
>
> Moreover, as I recall, there was pushback at the time that the IOT was
> reconstituted in that the selection was done by the Board itself (or a
> delegated committee).
>
> Lastly, based on the Statements of Interest of the IOT members, it is
> heavily skewed in favour of particular constituencies which again makes it
> a poor choice for selecting a judicial panel when its own constituencies
> may be participants in future IRPs.
>
> I believe that the only choice is that a new group be constituted to
> address the various steps called for in the Bylaws. It should be populated
> with formally appointed representatives from the AC/SOs that wish to
> participate so that they can act on behalf of the AC/SOs in compliance with
> the Bylaws.
>
> To ensure coverage but still have a lean group. I would suggest that each
> AC/SO have no more than 2 seats on this group. Those appointed to the group
> must have a strong understanding of the IRP and the role of the standing
> panel, but cannot be expected to have the skills or contacts to populate
> the panel. The group must be supported by an external recruitment
> organization that can provide the needed skill in identifying and
> recruiting potential qualified judicial experts who are interested in
> acquiring the requisite technical knowledge for the panel.
>
> There will also be a need to periodically fill vacancies on the panel and
> repopulate based on the five-year terms. The Bylaws are silent on how this
> will be done, but I suggest that this not be a focus of the current group
> but that their experience in populating the initial Standing Panel be
> factored in when specifying the ongoing repopulation procedure. That being
> said, consideration of the terms of all panelists expiring simultaneously
> should be given to ensure always having a functioning and skilled panel.
>
> Maureen
> .
>
>
>
> On Sun, Jul 19, 2020 at 8:29 PM ABDULKARIM AYOPO OLOYEDE <
> oloyede.aa at unilorin.edu.ng> wrote:
>
>> Hi Justine,
>> I think we agree on most of the issues.
>> However there is a bit of a mix up. Yes the evaluation panel does not
>> need to be lawyers,  but they must understand the profession. That is what
>> I mean in my previous email. I was referring to the standing committee and
>> the required experience for the committee.
>> I also agree it does not have to be NOMCOM but the evaluation panel
>> requires  better diversity than the current IRP-IOT.
>> I think we can now have a proposal back to David Olive.
>>
>> Thanks
>> AK
>>
>> On Mon, Jul 20, 2020 at 12:21 AM Justine Chew <
>> justine.chew.icann at gmail.com> wrote:
>>
>>> AK.
>>>
>>> I am now a bit confused with your latest reply. I don't think anyone is
>>> arguing against the desirability for diversity. But as you pointed out:
>>>
>>>
>>> *if you look at the skills required for this role, one has to be a
>>> lawyer with significant experience  or some with significant experience in
>>> arbitration  to be able to meet up with the criteria.  for anyone to judge
>>> those criteria tehy need to understand it.*
>>>
>>>
>>> And I agree with you! That's what I was saying before and I will say it
>>> again:
>>>
>>> To facilitate the best peer review for establishing an IRP panel, we
>>> need experienced arbitrators/counsels who understand what it takes to do
>>> the job. The job is not a generalized one and I don't think NomCom
>>> necessarily has what it takes because NomCom isn't mandated to have
>>> lawyers, let alone experienced arbitrators/counsels, make up its full
>>> membership.
>>>
>>> Participation in the IRP-IOT on the other hand is predicated on one
>>> having professional litigation/arbitration/mediation experience, folks who
>>> practise as litigators, arbitrators, mediators, and thus understand the job
>>> involved. So unlike NomCom, we know that the IRP-IOT is constituted only
>>> with litigators, arbitrators, mediators, and that's why -- between a
>>> limited choice of NomCom and the IRP-IOT -- I think the IRP-IOT is a better
>>> fit than NomCom.
>>>
>>> As to the 'lack of diversity' in the IRP-IOT membership, well that's
>>> subject to whichever litigators, arbitrators, mediators who responded to
>>> the open call for members.
>>>
>>> Perhaps we need to consider the possibility of expanding the choice of
>>> bodies, one with diversity -- I don't know if there is an appetite for yet
>>> another body -- but for now, NomCom simply isn't a good option.
>>>
>>> Justine
>>> ------
>>>
>>>
>>> On Sun, 19 Jul 2020 at 21:13, ABDULKARIM AYOPO OLOYEDE <
>>> oloyede.aa at unilorin.edu.ng> wrote:
>>>
>>>> HI,
>>>> But I think the experience is there with NOMCOM. They have been doing
>>>> it year in year out for all aspect of ICANN.  In terms of skills,  the
>>>> skills would be in the diversity fo the group because they would need to
>>>> pick people not based on what they have done in ICANN but in their
>>>> professional life as a Lawyer or a Judge and you need to understand how to
>>>> gauge that based on diversity.
>>>> For example, It takes someone from the UK to understand what it takes
>>>> to be a Queen's Counsel (QC) likewise You need to be from West Africa
>>>> (English speaker) to understand what it takes to be a Senior Advocate of
>>>> Nigeria (SAN). Another example is the jury system, I don't understand it
>>>> cos we don't use it but someone from the US would understand it. If you
>>>> look at the skills required for this role, one has to be a lawyer with
>>>> significant experience  or some with significant experience in arbitration
>>>> to be able to meet up with the criteria.  for anyone to judge those
>>>> criteria tehy need to understand it
>>>> That why I think the key skills required is diversity and understanding
>>>> Thanks
>>>>
>>>> AK
>>>>
>>>>
>>>>
>>>> On Sun, Jul 19, 2020 at 5:38 AM Holly Raiche <h.raiche at internode.on.net>
>>>> wrote:
>>>>
>>>>> I have to agree with Justine on this issue.  While one would clearly
>>>>> hope for diversity in membership, the bottom line has to be a minimum level
>>>>> of skill and experience in such panels.
>>>>>
>>>>> Holly
>>>>>
>>>>> On Jul 18, 2020, at 11:16 PM, Justine Chew <
>>>>> justine.chew.icann at gmail.com> wrote:
>>>>>
>>>>> I have less faith in NomCom being the right body simply because
>>>>> its members are not expected to have the requisite professional
>>>>> qualifications and experience to undertake the task of establishing a
>>>>> standing panel for the IRP. So we may just have to agree to disagree.
>>>>>
>>>>> Justine
>>>>> ------
>>>>>
>>>>>
>>>>> On Sat, 18 Jul 2020 at 17:41, ABDULKARIM AYOPO OLOYEDE <
>>>>> oloyede.aa at unilorin.edu.ng> wrote:
>>>>>
>>>>>> Hi
>>>>>> Thank you Justine. Yes it's like a judicial committee and they must
>>>>>> not be affiliated to any group in ICANN therefore they would not be know my
>>>>>> anyone in iCAnn.
>>>>>> However, the legal system or hierarchy varries from one country to
>>>>>> the other and it required a diverse team to be able to dissect things.
>>>>>> The current composition of IRP-IOT to me is not diverse enough but
>>>>>> it's not too bad. It has 18 members and from my initial glance it has one
>>>>>> person from Africa and one from Latin America. I do not know where the
>>>>>> applications would come from but it requires diversity to appriciaiate some
>>>>>> applications.   Therefore I would suggest that a more diverse group should
>>>>>> be set up I still think NOMCOM can do it if they are properly guided as to
>>>>>> what to expect and do..
>>>>>> Thanks.
>>>>>>
>>>>>>
>>>>>>
>>>>>> On Sat, 18 Jul 2020, 09:56 Justine Chew, <
>>>>>> justine.chew.icann at gmail.com> wrote:
>>>>>>
>>>>>>> See:
>>>>>>> https://community.icann.org/display/IRPIOTI/Independent+Review+Process+-+Implementation+Oversight+Team+%28IRP-IOT%29+Home
>>>>>>>
>>>>>>>    - SOIs of members are found in a sub-page
>>>>>>>
>>>>>>>
>>>>>>> On the one hand, I am not confident that NomCom is the right group
>>>>>>> to undertake selection because IRP panellists are required to have a
>>>>>>> specific skill-set which we cannot expect NomCom members to appreciate --
>>>>>>> think of it like a judicial selection committee which is tasked to
>>>>>>> recommend appointment of judges. On the other hand, the IRP-IOT has members
>>>>>>> who have acted or are acting as advocates for aggrieved parties, so we
>>>>>>> would need to consider any perceptions of conflict of interest.
>>>>>>>
>>>>>>> Justine
>>>>>>> ------
>>>>>>>
>>>>>>>
>>>>>>> On Sat, 18 Jul 2020 at 16:43, ABDULKARIM AYOPO OLOYEDE <
>>>>>>> oloyede.aa at unilorin.edu.ng> wrote:
>>>>>>>
>>>>>>>> Hi All,
>>>>>>>> Yes, it might be a good idea for IRP-IOT to carry out this task but
>>>>>>>> I think we need to see the full current composition (list of members) of
>>>>>>>> IRP-IOT.
>>>>>>>> I have tried looking for the membership online ut can't find it.
>>>>>>>> Maybe Greg can also help with that.
>>>>>>>> If the current IRP-IOT team is diverse enough,  I would support it
>>>>>>>> if not my suggestion would be to have a diverse team (new team or maybe a
>>>>>>>> team like the NOMCOM) to do the job of selecting the candidate depending on
>>>>>>>> the applications received.
>>>>>>>> Thanks
>>>>>>>>
>>>>>>>> AK
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>> On Fri, Jul 17, 2020 at 11:20 PM Maureen Hilyard <
>>>>>>>> maureen.hilyard at gmail.com> wrote:
>>>>>>>>
>>>>>>>>> Dear all
>>>>>>>>>
>>>>>>>>> In May, David sent the following request to SO-AC Chairs which I
>>>>>>>>> forwarded to this ALAC group seeking some opinion and/or advice on how
>>>>>>>>> ICANN might best proceed with establishing this standing panel.
>>>>>>>>>
>>>>>>>>> Greg currently represents the ALAC on the IRP-IOT which is being
>>>>>>>>> recommended as one group that could be additionally assigned this role.
>>>>>>>>> Perhaps Greg could comment and make a recommendation based on his knowledge
>>>>>>>>> of the requirements of this new panel and what is being done on the current
>>>>>>>>> IRP-IOT.
>>>>>>>>>
>>>>>>>>> Maureen
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> Dear SO/AC Chairs :
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> I am reaching out to see how we can best help you with forming
>>>>>>>>> this representative group. Understanding the level of work already
>>>>>>>>> underway in the community, we are suggesting that one way forward
>>>>>>>>> might be to leverage an existing community group.
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> As you may know, one of the features of the updated Independent
>>>>>>>>> Review Process (IRP) under the new Bylaws is the establishment of
>>>>>>>>> a standing panel from which panelists shall be selected to
>>>>>>>>> preside over each IRP dispute.  The Bylaws specify that “ICANN
>>>>>>>>> shall, in consultation with the Supporting Organizations [SOs] and Advisory
>>>>>>>>> Committees [ACs], initiate a four-step process to establish the
>>>>>>>>> Standing Panel…” (Bylaws, Art. 4, Sec. 4.3(j).)  Notably, the SOs
>>>>>>>>> and ACs must collectively agree on a single proposed standing
>>>>>>>>> panel slate to be submitted to the ICANN Board for approval as
>>>>>>>>> part of the four-step process.
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>  We’ve received feedback from many SOs and ACs
>>>>>>>>>  [secure-web.cisco.com]
>>>>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__secure-2Dweb.cisco.com_13MkW56PyY3AtpkuEL4mekdX5fm-2DxumjmV8R-2DS7WJdH0buT9xXC1UdHBT5i6shITDhVBmfHOBmUpK30O0n8WqMEgH5Xta-2DAKyErJxtGiwni263ne0GMRCGQTGUQpfm6hVtG69pRORpjtjLcxji1en0zAgvix1o630IgERRv0TUB9TthpTbr8ptOtWcGhUoP0xtlGK5EehlVZcv3EbNdY9yrzv1CblRetRcyEGlpbYZYu60sFdMbdl4Tbw73Yqa2CgUk1L-5FETrlu9gO5o2Tsc9fA_https-253A-252F-252Fcommunity.icann.org-252Fdisplay-252FESPFIRP-252FRelevant-252BDocuments-253Fpreview-253D-252F95095469-252F126431359-252FCommunityFeedbackEstablishingStandingPanel-5F31March2020.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=h7ObVMPGpAcLv72avqZ3syNYxeg9Akd-D4l9_q4cPOQ&m=zTW8J_DZpbmbmPajmSBAKzADp73kxi5QxALVkKUg8gE&s=7Tm4rLUkqNCYzmd2XDuVqU-X6XGtsArP2TrPnNh-ibc&e=> as
>>>>>>>>> to how they envision this work getting done, and published a summary
>>>>>>>>> and next steps [secure-web.cisco.com]
>>>>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__secure-2Dweb.cisco.com_13MkW56PyY3AtpkuEL4mekdX5fm-2DxumjmV8R-2DS7WJdH0buT9xXC1UdHBT5i6shITDhVBmfHOBmUpK30O0n8WqMEgH5Xta-2DAKyErJxtGiwni263ne0GMRCGQTGUQpfm6hVtG69pRORpjtjLcxji1en0zAgvix1o630IgERRv0TUB9TthpTbr8ptOtWcGhUoP0xtlGK5EehlVZcv3EbNdY9yrzv1CblRetRcyEGlpbYZYu60sFdMbdl4Tbw73Yqa2CgUk1L-5FETrlu9gO5o2Tsc9fA_https-253A-252F-252Fcommunity.icann.org-252Fdisplay-252FESPFIRP-252FRelevant-252BDocuments-253Fpreview-253D-252F95095469-252F126431359-252FCommunityFeedbackEstablishingStandingPanel-5F31March2020.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=h7ObVMPGpAcLv72avqZ3syNYxeg9Akd-D4l9_q4cPOQ&m=zTW8J_DZpbmbmPajmSBAKzADp73kxi5QxALVkKUg8gE&s=7Tm4rLUkqNCYzmd2XDuVqU-X6XGtsArP2TrPnNh-ibc&e=>.  There
>>>>>>>>> is strong support for the SOs and ACs to further their selection effort
>>>>>>>>> of the Standing Panel through a small representative group, and
>>>>>>>>> ICANN org sees this as an important component to getting the
>>>>>>>>> Standing Panel established.
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> *In looking at the groups that are already active,
>>>>>>>>> one potential way to proceed is to leverage the existence of
>>>>>>>>> the IRP Implementation Oversight Team (IRP-IOT). *
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> The IRP-IOT, which you helped repopulate, is already comprised of
>>>>>>>>> people that are well qualified in issues relating to ICANN, international
>>>>>>>>> arbitration and dispute resolution and who are likely to have the skill
>>>>>>>>> sets that would be needed to lead the community work on this
>>>>>>>>> important endeavor. If this is a potential way forward, we could quickly
>>>>>>>>> work with you to explore how to appropriately do this work along
>>>>>>>>> with the other work underway in the IRP-IOT.
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> *We are also ready to support the community in forming a new,
>>>>>>>>> separate representative group to do this work.*
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>  From the ICANN org side, we’re available to support the community to
>>>>>>>>> identify and get this representative group up and running so that the
>>>>>>>>> panel selection process can move forward – including
>>>>>>>>> identification of an expert to further support and coordinate the
>>>>>>>>> community work – in time to start work when the deadline for the
>>>>>>>>> submission of expressions interest to serve on the Standing Panel expires
>>>>>>>>> on 31 July.
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> Let us know how we can help you move this work along.
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> Best regards,
>>>>>>>>>
>>>>>>>>> David
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> Sent from my iPhone
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> David A. Olive
>>>>>>>>> Senior Vice President
>>>>>>>>>
>>>>>>>>> Policy Development Support
>>>>>>>>>
>>>>>>>>> Internet Corporation for Assigned Names and Numbers (ICANN)
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> _______________________________________________
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