[PC-NCSG] need for independent evaluation with ombudsman

Tue Mar 4 19:38:57 EET 2014

makes sense to me too.

On 04-Mar-14 17:23, Stephanie Perrin wrote:
> Makes sense to me.  Not that any of this makes any sense.
>   Mind-boggling, and as Avri said today on another topic, makes it hard
> to defend this model of Internet governance.
> SP
> On Mar 4, 2014, at 12:18 PM, Robin Gross <robin at ipjustice.org
> <mailto:robin at ipjustice.org>> wrote:
>
>> 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
>>>> <mailto: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 <mailto: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/
>>>> Webpagehttp://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/
>>>> Webpagehttp://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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