ICANN Resolutions » Independent Review Process Interim Supplementary Rules of Procedure
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Whereas, the Independent Review Process (IRP) is an accountability mechanism provided by the ICANN Bylaws that allows for third party review of ICANN Board or staff actions (or inactions) alleged by an affected party to be inconsistent with ICANN's Articles of Incorporation or Bylaws.
Whereas, ICANN IRPs are governed by the International Centre for Dispute Resolution's (ICDR) International Arbitration Rules, as modified by the IRP Supplementary Procedures.
Whereas, an IRP Implementation Oversight Team (IOT) was formed under the Bylaws to, among other tasks, draft the detailed IRP supplementary rules of procedure (Updated Supplementary Procedures) for Board adoption.
Whereas, the IRP IOT has made significant progress in drafting the Updated IRP Supplementary Procedures; however, there are still some areas that need further development and are not yet ready to be finalized for Board approval.
Whereas, in consideration that the current Supplementary Procedures in effect do not correspond to the Bylaws as updated on 1 October 2016, the IRP IOT has developed a set of Interim Supplementary Procedures that align with the current Bylaws, in order to apply to an IRP if one is initiated before all issues are addressed to meet a final set of Updated IRP Supplementary Procedures. As of 21 October 2018, the IOT consented to submitting this set of Interim Supplementary Procedures for Board consideration.
Whereas, the IRP IOT is, among other items, considering potential modifications to Rule 4 regarding time limits for filing an IRP, and there does not yet appear to be community consensus on whether it is appropriate to have an outside time limit on when an IRP can be filed to challenge any action of ICANN. Some in the community believe that it is against ICANN's Bylaws to have an outside time limit based on the date of ICANN's action, but that is disputed and ICANN's Office of the General Counsel has advised that it disagrees with such an interpretation. ICANN's General Counsel advises that the Interim Supplementary Procedures are consistent with ICANN's Bylaws.
Whereas, the Board remains open to considering any proposed consensus-based resolution of the time for filing issue presented within an Updated Supplementary Procedures draft.
Whereas, the Board Accountability Mechanisms Committee (BAMC), in its oversight role of accountability mechanisms, has considered the Interim Supplementary Procedures and recommended that the Board adopt the Interim Supplementary Procedures until there is a completed set of Updated IRP Supplementary Procedures available.
Resolved (2018.10.25.20), the Board adopts the Independent Review Process Interim Supplementary Procedures.
Resolved (2018.10.25.21), the Board thanks the IRP IOT for its work to date, and urges the IRP IOT to deliver a set of Updated Supplementary Procedures to the Board as soon as possible.
ICANN has a proven commitment to accountability and transparency in all of its practices. ICANN considers these principles to be fundamental safeguards in ensuring that its bottom-up, multistakeholder model remains effective. The mechanisms through which ICANN achieves accountability and transparency are built into every level of its organization and mandate. In order to reinforce its transparency and accountability, ICANN has established, among other accountability mechanisms, the Independent Review Process (IRP), that allows for third party review of ICANN Board or staff actions (or inactions) alleged by an affected party to be inconsistent with ICANN's Articles of Incorporation or Bylaws.
The International Centre for Dispute Resolution (ICDR) currently administers ICANN IRPs. IRPs are governed by the ICDR's International Arbitration Rules, as modified by Supplementary Procedures for the ICANN IRP. The IRP was significantly modified through the Enhancing ICANN Accountability Process, and the Bylaws reflecting the new IRP were updated on 1 October 2016. The IRP Supplementary Procedures in place before the Bylaws were revised in 2016 do not meet all the requirements of the new Bylaws. Accordingly, the IRP Implementation Oversight Team (IOT) was charged with preparing updates to those Supplementary Procedures for Board adoption.
The IRP IOT has spent a significant amount of time and effort in updating the Supplementary Procedures. A draft set of Updated Supplementary Procedures were submitted for public comment from 28 November 2016 to 1 February 2017. (See https://www.icann.org/public-comments/irp-supp-procedures-2016-11-28-en.) Following the close of the comment period, the IRP IOT considered the inputs received from the community and revised the draft set of Updated Supplementary Procedures as appropriate. Following its deliberations, the IRP IOT sought public consultation for a second time from 22 June 2018 to 10 August 2018 on proposed revisions to Rule 4: Time for Filing that were material from the original Updated Supplementary Procedure Rule 4 that was published for public comment on 28 November 2016. (See https://www.icann.org/public-comments/irp-iot-recs-2018-06-22-en.) The comments received from the second public comment period are currently under review by the IRP IOT along with some other areas that need further development and are not yet ready to be finalized for Board approval.
Cognizant that the Supplementary Procedures in effect correspond with the old ICANN Bylaws, the IRP IOT developed a set of Interim Supplementary Procedures that align with the new Bylaws and which could be put in place in the event that an IRP is filed prior to the time that there is a completed set of Updated IRP Supplementary Procedures available
In drafting these Interim Supplementary Procedures, the IRP IOT applied the following principles: (1) remain as close as possible to the current Supplementary Procedures or the Updated Supplementary Procedures posted for public comment on 28 November 2016;; (2) to the extent public comments received in response to the Updated Supplementary Procedures reflected clear movement away from either the current Supplementary Procedures or the Updated Supplementary Procedures, to reflect that movement unless doing so would require significant drafting that should be properly deferred for broader consideration; and (3) take no action that would materially expand any part of the Supplementary Procedures that the IRP IOT has not clearly agreed upon, or that represent a significant change from what was posted for comment and would therefore require further public consultation prior to changing the supplemental rules to reflect those expansions or changes.
The IOT began consideration of a set of Interim Supplementary Procedures in May 2018. The version considered by the Board today was the subject of intensive focus by the IOT in two meetings on 9 and 11 October 2018, convened with the intention of delivering a set to the Board for our consideration at ICANN63. There were modifications to four sections identified through those meetings, and a set reflecting those changes was proposed to the IOT on 19 October 2018. With no further comment, on 22 October 2018 the IOT process on the Interim Supplementary Procedures concluded and it was sent to the Board for consideration.
The Board understands that among the areas where further consideration is needed is the issue of "time for filing", or Rule 4 of the Procedures. The most recent public comment period referenced above (closing on 10 August 2018) was focused on the issue of if a person/entity was harmed by an act of ICANN, how long after that act (or inaction) should the person/entity have to file an IRP. The fundamental issue posed in the public comment is whether it is appropriate to have any outside time limit by when an IRP can be filed. During the IOT's work on the issue, a position was raised that including any external limitation is in violation of the ICANN Bylaws, which at Section 4(n)(iii)(A) requires the IOT to develop a procedure on "[t]he time within which a Claim must be filed after a Claimant becomes aware or reasonably should have become aware of the action or inaction giving rise to the Dispute." The Board has been advised, and ICANN Legal has publicly stated its position, that this portion of the Bylaws does not preclude an outside time limit on filing disputes.
The set of Interim Supplementary Procedures includes at Rule 4 the same external limit on filing an IRP as was initially proposed by the IOT – 12 months from the date of ICANN's action. The Board understands that the IOT has not yet considered the public comment on its proposal to remove that 12-month limitation, and that is a key area where the Board understands there may be changes presented in the forthcoming Updated Supplementary Procedures. The Board acknowledges that ICANN organization has committed to ensure that if that time for filing is expanded in the Updated Supplementary Procedures, those Updated Supplementary Procedures "will include transition language that provides potential claimants the benefit of that additional time, so as not to prejudice those potential claimants." The Board agrees that is an appropriate balance that will accommodate potential future changes with minimal impact to those seeking to use ICANN's accountability mechanisms. While the Board believes that it is allowable under the Bylaws to incorporate an external time limit for the filing of an IRP, the Board understands that the community might have different reasons for recommending modifications to that time for filing limitation, and today's action does not in any way preclude the IOT's ability to propose different language for this Rule 4 for the Updated Supplementary Procedures.
The Board appreciates the amount of time and effort the IOT has dedicated to deliver procedures to govern the IOT, and we expect that work to continue to completion on all remaining issues the IOT has identified.
This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place that allows for third party review of ICANN Board or staff actions (or inactions) alleged by any harmed party to be inconsistent with ICANN's Articles of Incorporation or Bylaws. This action has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.
This decision is an Organizational Administrative Function that has already been the subject of two public comment processes and does not require further public comment at this stage.