[EC-NCSG] need for independent evaluation with ombudsman

Mon Mar 10 04:10:14 EET 2014

Thanks, Rafik.  Having heard no objections, we'll get the process underway now.  

Best,
Robin

On Mar 5, 2014, at 4:49 AM, Rafik Dammak wrote:

> Hi Robin,
> 
> I think that is the option we have now. hopefully we can start such process before singapore.
> lets wait to see other EC members reactions, and if there is no objection we can proceed.
> 
> Best,
> 
> Rafik 
> 
> 2014-03-05 2:18 GMT+09:00 Robin Gross <robin at ipjustice.org>:
> Dear EC Members:
> 
> It would seem the best course for NCSG is to now file this request for an independent evaluation with ICANN's ombudsman over the issue of board-staff circumventing the process stated in ICANN's bylaws for making policy.  I propose we now do this.  Ed Morris is willing to continue to work with me to see this issue through so he and I will begin to prepare this request and perhaps we can make some progress in Singapore on this issue.
> 
> Thanks,
> Robin
> 
> Begin forwarded message:
> 
>>> 
>>> From: Chris LaHatte <chris.lahatte at icann.org>
>>> Subject: RE: NCSG Mediation TM 50 Issue
>>> Date: February 9, 2014 3:54:23 PM PST
>>> To: Robin Gross <robin at ipjustice.org>
>>> 
>>> Hi Robin
>>>  
>>> Thank you for the reply. I believe the independent evaluation may be the best way to proceed on this matter, because if there is nothing further to discuss on the part of ICANN, then a mediation may be difficult. I was keen to promote this idea, if for no other reason than enabling each party to have a better understanding of their views, even if they did not agree. However ICANN legal were just not enthusiastic. I certainly can proceed to such an evaluation is that would involve an assessment of whether the procedure followed was fair, bringing this into my jurisdiction. I have suggested this to the legal Department and it may be the best way to take the next step. Could I trouble you to make a submission along those lines, to the effect that your view is that ICANN did not follow its corporate bylaws, and I will ask for a similar submission from legal. Once I have these I can consider the matter and make a determination.
>>>  
>>> Please contact me if you need to discuss this further.
>>>  
>>> Regards
>>>  
>>>  
>>> Chris LaHatte
>>> Ombudsman
>>> Blog  https://omblog.icann.org/
>>> Webpage http://www.icann.org/en/help/ombudsman
>>>  
>>>  
>>> Confidentiality
>>> All matters brought before the Ombudsman shall be treated as confidential.  The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint.  The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint
>>>  
>>> From: Robin Gross [mailto:robin at ipjustice.org] 
>>> Sent: Saturday, February 08, 2014 11:20 AM
>>> To: Chris LaHatte
>>> Cc: Milton Mueller; Edward Morris; Rafik Dammak; Steve Crocker; Raymond Plzak
>>> Subject: Re: NCSG Mediation TM 50 Issue
>>>  
>>> Thank you, Chris.
>>>  
>>> It is disappointing that ICANN legal dept takes the position that its decisions cannot be changed, even if found to violate the organization's bylaws.  We want an evaluation of what the bylaws require of ICANN when making policy compared with how this policy was adopted.  An evaluation that depends on the guidance of ICANN legal dept., as all evaluations have done just become circular.  This issue has not been before an independent evaluator and that is necessary to receive any kind of independent judgement.  ICANN legal's reassurance that it 'can do what it did and even if it can't, it's too late to do anything about it now' underscores the circular problem we are having and have been for a year now on this issue.  If policies that violate the bylaws REALLY can't be changed because they've already been adopted, then ICANN has an even bigger accountability issue on its hands.
>>>  
>>> We would like to go ahead with the mediation and try to get an independent evaluation from you on the key issue in question: violation of corporate bylaws.  What a proper remedy would be is a different question that I am happy to explore further.  But as I have said before, we would like to have a ruling on whether the corporate bylaws were violated in the adoption of this policy.  Are you able to investigate this issue even if ICANN legal does not wish for it to continue?
>>>  
>>> Thanks,
>>> Robin
>>>  
>>>  
>>> On Jan 30, 2014, at 4:54 PM, Chris LaHatte wrote:
>>> 
>>> 
>>> Hi Robin
>>>  
>>> I have finally had a lengthy discussion with John Jeffries and Amy Stathos about this issue. The position is that they are unsure what they can offer by way of any concession at a mediation. As you may have predicted, they take the strong view that this was implementation and that there was adequate presentation of the case for an appropriate level for the Trademark Clearinghouse. Their view is that the decisions cannot now be unravelled and therefore they are unsure as to what can be offered at a mediation. After some discussion, and which I expressed my view that at least a principal aim should be to avoid conflict and to avoid the need for an Independent Review Panel, it was suggested that I should ask what your community would want out of such a mediation, given their view is that it is not possible to revisit the decisions at this stage. So if you can help me on this, I would be grateful.
>>>  
>>> Regards
>>>  
>>> Chris LaHatte
>>> Ombudsman
>>> Blog  https://omblog.icann.org/
>>> Webpage http://www.icann.org/en/help/ombudsman
>>>  
>>>  
>>> Confidentiality
>>> All matters brought before the Ombudsman shall be treated as confidential.  The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint.  The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint
>>>  
>>>  
>> 
> 
> 
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