The ICANN Independent Review Process: complete the trial before modifying it

The law firm representing ICM Registry in its pioneering Independent Review of the ICANN decision on the .xxx top level domain has issued a call for ICANN to wait until the process is concluded and the community can assess the results before making any changes to the Independent Review Process.

In an important release that seems to have been swallowed up by the Thanksgiving holiday in the U.S., the Crowell-Moring law firm noted that “the IRP (Independent Review Process) between ICM and ICANN was the first, and to-date the only, opportunity to test the functionality of the rules governing the IRP.” They noted that ICANN’s own lawyers said that they were “grateful for the opportunity to test the process, and invited the Panel to provide ICANN with comments and advice regarding the functionality and benefits of the IRP.” The statement suggests that ICANN should wait for the panelists’ decision, which will come some time in the next couple of months, before making any changes. It also asks ICANN to “seek additional expert advice and consult with the broader ICANN community regarding reforms to the IRP.” The proposed reforms to the IRP emerged from previous ICANN CEO Paul Twomey’s Presidential Strategy Committee.

We think these are reasonable requests. Accountability is one of the most important concerns regarding ICANN’s future, and the IRP is one of the few external accountability mechanisms available for ICANN. It makes sense, therefore, for the broader ICANN community to assess the results of the .xxx appeal and to hear what the independent panelists think about the procedural and substantive aspects of the case before making any modifications. Changing the IRP before one can take into account the only experience we have with it is like modifying the design of an airplane before it has gone on its first test flight.

Disclosure: I was an expert witness for ICM Registry in the current IRP process. But I have no idea how that case will turn out, and my expert testimony in that case is unrelated to the simple logic that we should not modify the IRP before we know the results – whatever they are – in this case.

3 comments

  1. Anonymous

    Hi Milton,
    Thanks for reminding us that slow moving processes are sometimes as important as the events making the headlines, for instance the Affirmation of Commitments.
    How is the IRP related to this portion of the AoC:
    “9.1 […] ICANN commits to maintain and improve robust mechanisms […] by: (a) continually assessing and improving [Board] governance which shall include an ongoing evaluation of […], and the consideration of an appeal mechanism for Board decisions;”
    I didn't see anybody commenting on this call for an appeal mechanism. When I first read the AoC, it struck me that this was like a recommendation at the outset, so I naively expected the ICANN board to “take action within six months.” Failing an appeal mechanism in a reasonable time frame after AoC, a party wishing to settle a dispute with ICANN would have a stronger case to claim that an ordinary court would have jurisdiction.
    Irrespective of my naive reading of the AoC, I see simple common sense in the position of the ICM registry legal representatives. You don't change a dispute resolution forum in the course of precessing a case. That's in the first chapter of dispute resolution 101!

  2. Anonymous

    good observations, Thierry. I would point out that the part of the Affirmation you cite contains the kind of weak language that is all-too-typical of existing ICANN accountability mechanisms: the Board is asked to “consider” an appeal mechanism. The very busy ICANN Board has no real incentive ti _implement_ one until and unless its community really makes noise about it, and, perhaps they lose the ICM case and are forced to concentrate their minds on the issue.

  3. Anonymous

    The key point is that this AoC language is a direct reference to external ICANN board accountability. Your paper “ICANN Inc, Accountability and participation in the governance of critical Internet resources” is clear about the accountability modes, and is a recommended reading in this context.
    Having a direct reference to external accountability in the AoC tells stakeholders two things:
    a) stakeholders should expect some external accountability mechanism to be available,
    b) the substantive AoC provisions becomes the rules applicable by the adjudicators in the (more or less elusive) accountability mechanism.
    This has to be kept in mind when significant issues are dealt by the ICANN board. For instance, enforceability of price regulation could depend on this external accountability to the extent the Antitrust division of the US department of justice looses its voice as a direct accountability stakeholder. Is ICANN free from USG control in this regard with the AoC?