[At-Large] [ALAC] Reference: ICC Ruling on Objections filed by the ALAC

[Hong Xue]

On Fri, Jan 24, 2014 at 1:17 AM, Olivier MJ Crepin-Leblond <ocl at gih.com>wrote:

>
> I am particularly concerned with the narrow definition of "community",
> "Internet community", "end user community" - or in fact as their lack of
> definition. Referring to the ICANN Bylaws, the ALAC's scope should be
> defined in a way that the "community' element would be accepted by legal
> rulings. Yet the ICC examiner's ruling is that the Community needs to be
> clearly delineated (as the AG asks) in such a narrow sense that the ALAC
> really does not represent anything or anyone. I am troubled that this
> interpretation is *exactly* the interpretation of the applicants who
> responded to the ALAC's objection by challenging the ALAC itself.
> (whether this is ethical or not, I don't blame them for it, it is
> entirely fair game - play the system you're given and make use of its
> flaws)
>
>
>
The ICC decision has been rendered according to the AGB's objection rules.
Since ICANN-invented objection procedure is a quasi-arbitration proceeding,
I cannot see the ICC-appointed adjudicator had any other choice but to
follow the objection rules with the limited discretion power. Yes, it is
not unarguable if we do wish to examine the decision line by line, such as
on delineated community and ALAC's standing. But what's the point of doing
this? There is no way to appeal within the objection procedure. ALAC cannot
request ICC to retry the case or revise the decision.

Then, At-Large "community" (not defined legally-:) and ALAC may wish to
consider how to move to next step. Olivier referred to ICANN Bylaws, so we
may come back to ICANN "ecosystem" to seek any possible "remedy".

Option 1: ALAC may file reconsideration request to ICANN Board, though it
is far from clear whether Board would "reconsider"/review the decision made
by its designated dispute service provider in the objection proceeding.
After that, there could another file for independent review.

Actually, many new gTLD applicants that are unhappy with the decisions made
through objection proceeding have already petitioned to Board. Would the
Board take the risk of reopening so many cases? This is exactly the
backfire of outsourcing the decision-making power to dispute resolution
service providers [ALAC made the statement back to Mexico ALS I 2009]. Now
the disputes are coming back to ICANN. I would really want to know how the
appeal or retrial be handled within ICANN?

Option 2: ALAC could wait to see how ICANN restructure its appeal mechanism
according to the Final Report of ATRT 2, Rec.9. That would take quite a
long time and may only work for "next" round of new gTLD indeed.

Hong

For those celebrating Lunar New Year, Happy the Year of Horse!



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