[PC-NCSG] need for independent evaluation with ombudsman

Tue Mar 4 20:19:59 EET 2014

Hi,

Yeah Amr, and I support that proposal, though I saw you didn't.

avri

On 04-Mar-14 18:12, Amr Elsadr wrote:
> 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
> <mailto: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>
>>> <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>
>>>>>> <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><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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>>>
>>>
>>>
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>>>
>>
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