[PC-NCSG] need for independent evaluation with ombudsman

Tue Mar 4 20:37:47 EET 2014

Hi,

I never thought the proposal was bad in principle. I just didn?t see how or why it should be a GNSO Council motion. I still don?t. I recommended the discussion be moved to the SO/AC leadership list (even with an informal recommendation from Council), and perhaps a CCWG that can develop a charter with input from all the different groups to see it through.

Was I unclear on that? I hope not.

Thanks.

Amr

On Mar 4, 2014, at 7:19 PM, Avri Doria <avri at acm.org> wrote:

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