Attendees:
Sub-Group Members: Avri Doria, Becky Burr, David Maher, David McAuley, Jonathan Zuck, Par Brumark, Steve DelBianco (7)
Staff: Alice Jansen, Brenda Brewer, Kim Carlson
Apologies:
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Recording
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p6lwjmjv8ri/
The audio recording is available here:
Notes
Agenda
NOTES & ACTION ITEMS:
These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.
The comments on mission statement and commitments have been pretty positive. We do have questions regarding the balancing test: why the existing balancing test is inadequate and whether the proposed one is appropriate or not. We will need to pay attention to this. We also received a request for more clarity with respect to certain terms (community, public interest...) Reasonnable points we might want to take into consideration moving forward.
Feedback:
- Problematic: auDA and AFRALO comments - other than than positive. Suggestion for mutual accountability roundtable WIllie Currie made is a good idea.
--> Willie Currie's suggestion should be discussed
- UA model or general reliance on goodwill of Board or combination of those, that is clearly drawing the most comment and focus throughout these. For WP2 purposes, it comes up in form of questions about how we are driving things to litigation and are we creating situation where California is interfering with ICANN's operations. FR comment pointed that sovereign governments can't necessarily sign up for binding arbitration. There was also comments about how people should not be able to gain process in IRP if they did not participate in policy development/public comment process. We are going to face hard questions on binding finality, accessibility and abusive resort.
- We have ability to cause people to go to dispute resolution (IRP) as opposed to just running to Court. Courts in California will clearly defer to the findings of IRP. It would be a Court enforcing holding of IRP. If we want to we can ensure Court in California is not involved in resolving disputes. Concern about excessive litigation. BC suggested abusive discretion. There is an insertion that clear error of judgement equals an abusive discretion.
- We might expect: 1) issue of precedential nature; 2) potential gap between limitation and scope of IRP.
--> We can't deprive member of right. These two issues we will need to dealt with.
What scope of holding could be -
- IRP panel would draw rules. Concerns that no idea of what these rules are. These rules could be submitted to community for adoption.
- Idea that we can implement IRP through Bylaws that specify that they need to go through IRP instead of going to Court. BC wants access to IRP might be further constrained
There are inherent risks we are trying to mitigate.
We do have to be careful about how we craft this.
We have to think carefully that sometimes disputes are commercial related. We need to ensure we are not imposing limitations on commercial interaction and ability to resolve disputes.
Plans for comments division, work plans for next week and BA - three hour call on Tuesday. Staff is putting together comments and will ask for volunteers.
- If we could clear up factual disputes, we could get to ideological disputes and hammer those out. Try to go through factual issue so that we can engage in educated way.
- Might need to do a better job at laying out alternatives, choices and options
- Clearing facts will help us have conversation on enforceability
- No enforceability is an option, although problematic with stress tests
- We need to pull together a document that reaches agreement on facts e.g. matrix of enforceability.