[PC-NCSG] need for independent evaluation with ombudsman

Tue Mar 4 20:12:35 EET 2014

Hi,

There is a proposed initiative, ironically being championed by the BC, to crowdsource feedback on the CEO?s (Fadi?s) performance, specifically on his circumvention of the bottom-up MS process. If for any reason the ombudsman option doesn?t work out, we should draw attention to the TM+50 issue there. We should probably do that even if the ombuddy comes through for us. :)

In any case, yeah?, go for it, Robin. :)

Thanks.

Amr

On Mar 4, 2014, at 6:38 PM, Avri Doria <avri at acm.org> wrote:

> 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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>>> PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> 
>> 
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