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    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)

    ICANN Staff and Structure Touton on the never-implemented Independent Review process
    posted by jon on Thursday March 07 2002, @08:52AM

    ICANN just released a memo from Louis Touton on the Independent Review process. Nine months ago, the Board charged a nominating committee (Tim Berners-Lee, Scott Hemphill, Oliver Iteanu, Ching-Yi Liu, Joon Kook Park, Houlin Zhao) to come up with a list of nominees for ICANN's long-promised Independent Review Panel. And last month Scott Hemphill, on behalf of the committee, transmitted to ICANN a list of nine names for the Panel's nine initial vacancies: Zoe Baird (US), Diane Cabell (US), Scott Donahey (US), David Post (US), Michael Kirby (AU), Houston Putnam Lowry (US), Margit Brandl (AT), Henry Perritt (US), Zheng Chengsi (CN). So far so good, right? . . . Not so fast.

    The bad news, Louis Touton tells us, is that only Hemphill, Zhao, and Liu were involved in creating this list; the other three committee members declined to participate. The list thus was not the product of a committee majority; accordingly, the committee failed in its quorum requirement, and the list cannot be treated as a committee recommendation. Because ICANN's Independent Review Policy states that panel members are to be nominated by "the IRP Nominating Committee," and these haven't been, the Board can take no action without changing the policy.

    Under the circumstances, Touton suggests that ICANN junk the panel, and contract out the independent review function to commercial arbitration centers. He continues: "[I]t may be appropriate to require those seeking independent review under this mechanism to at least share in the costs paid to the arbitrators and the arbitration center."

    Looks like ICANN ducked a bullet. At least a couple of the names on the committee's list belong to folks who might actually have concluded, from time to time, that ICANN had violated its bylaws or acted in the absence of consensus. It would have been embarrassing for the Board to avoid that possibility by voting to reject the committee's nominations; this way is a lot easier.

    It's icing on the cake for the Board to eliminate the Independent Review Panel altogether. Under the commercial arbitration approach Touton suggests, a person filing for independent review would have to pay a substantial fee to invoke the process. (Let's look at the ICC International Court of Arbitration as a guide to fees for commercial arbitration. Their fees start at a $5000 floor, when the amount in dispute is negligible, and go up fast as a percentage of the amount at stake.) And what would such a person get for his thousards of dollars? The opportunity to argue to an arbitration panel that it should recommend to the Board that it think about maybe changing its mind on the matter in question. This is better than the Stuart Lynn argument that the entire concept of independent review is frivolous, but it still doesn't inspire confidence.

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  • ICC International Court of Arbitration
  • a memo from Louis Touton
    This discussion has been archived. No new comments can be posted.
    Touton on the never-implemented Independent Review process | Log in/Create an Account | Top | 6 comments | Search Discussion
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    Re: Touton on the never-implemented Independent Re
    by fnord (groy2kNO@SPAMyahoo.com) on Thursday March 07 2002, @11:56AM (#5181)
    User #2810 Info
    The IRP Nominating Committee members and who appointed them is available here. Following is a list of the members and their appointing organization. The first of each of the pairs of names was a two year appointment, the latter, three years:

    Tim Berners-Lee and Houlin Zhao, PSO
    Joon Kook Park and Ching-Yi Liu, ASO
    Olivier Iteanu and Scott Hemphill, DNSO

    It may be coincidence but it is the three year appointees who made some effort.

    Who are these people? Joon Kook Park is a lawyer. So are Iteanu and Liu, and they're also ALSC members. Iteanu is also a WIPO UDRP panelist. Houlin Zhao is the Director of the Telecommunication Standardization Bureau of the ITU. Scott Hemphill is President of registrar domainbank. If you don't know who Tim Berners-Lee is, you're on the wrong internet.

    It's a good thing that Lynn is going to banish the common volk from ICANN governance so that things get done. Er, wait a minute... -g

    [ Reply to This | Parent ]
    Re: Touton on the never-implemented Independent Re
    by fnord (groy2kNO@SPAMyahoo.com) on Thursday March 07 2002, @07:13PM (#5185)
    User #2810 Info
    If you mean the IRP Nominating Committee, they are unpaid volunteer positions. -g
    [ Reply to This | Parent ]
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