Minutes | Board Accountability Mechanisms Committee (BAMC) Meeting 19 December 2019

Board Accountability Mechanisms Committee (BAMC) Attendees: Becky Burr, Sarah Deutsch, Chris Disspain, Avri Doria, Mandla Msimang, Nigel Roberts and León Sanchez (Chair)

ICANN Organization Attendees: Samantha Eisner (Deputy General Counsel), John Jeffrey (General Counsel and Secretary), Aaron Jimenez (Board Operations Specialist), Vinciane Koenigsfeld (Senior Director, Board Operations), Cyrus Namazi (Senior VP, Global Domains Division) and Amy Stathos (Deputy General Counsel)

The following is a summary of discussions, actions taken, and actions identified:

  1. Reconsideration Request 19-4 (Merck KGaA and Merck Registry Holdings, Inc., .MERCK) – The Committee received a briefing from ICANN organization regarding Reconsideration Request 19-4 submitted by Merck KGaA and Merck Registry Holdings, Inc. (Requestors) seeking reconsideration of ICANN org's denial of their mutual request for a second postponement of a string contention auction for.MERCK (Second Request). The Requestors assert that ICANN staff's denial of the Second Request failed to consider material information and contradicted ICANN org's policies of: (i) favoring the voluntary settlement of string contention and treating auctions as a matter of last-resort; and (ii) allowing for discretionary waiver of deadlines in the Applicant Guidebook. The Requestors also assert that the denial of the Second Request was contrary to ICANN org's Commitment to "[m]ake decisions by applying documented policies neutrally and objectively with integrity and fairness." The Requestors ask that the Second Request be granted, and that the auction date be postponed for nine months to allow them to consider settlement negotiations.

    After discussion, the BAMC found that reconsideration is not warranted because ICANN staff did not fail to consider material information or violate ICANN's Commitments, Core Values or established ICANN policy(ies) in its denial of Requestors' Second Request. The BAMC therefore recommended that the Board deny Request 19-4. The BAMC noted, however, that the delay the Requestors sought (in order to have time to reach a private resolution) has nearly been achieved by virtue of the Requestors' first postponement and their filing of Request 19-4. Nevertheless, the BAMC also recommended that the Board ask ICANN org to seek an update from the Requestors on: (i) whether the Requestors have received any of the court rulings that the Requestors stated were expected in 2019 that they indicated would assist them in resolving their dispute; and (ii) what progress, if any, the Requestors have made toward private resolution. If the Requestors jointly declare they have made progress since filing Request 19-4 and that they are very close to private resolution, the BAMC recommends that the Board ask ICANN org to consider providing the Requestors with some form of discretionary relief that could allow them to finalize a resolution.

    • Actions:

      • ICANN org to notify the Requestors of the BAMC's recommendation and advise the Requestors of their opportunity to submit a rebuttal to the BAMC's recommendation within 15 days.
      • ICANN org to prepare materials for Board consideration, taking into consideration the Requestors' rebuttal, if any.
  2. Update on Independent Review Process Implementation Oversight Team (IRP-IOT) Status – The Committee received a briefing from ICANN org regarding the status of the IRP-IOT. The IRP-IOT will conduct its first reconvening meeting on 14 January 2020, and will continue to work on finalizing IRP supplementary procedures that provide clarity and efficiency for IRP proceedings. The IRP-IOT will also begin work on a set of proposed IRP appellate procedures, which is one of the other phases of work slotted for the IRP-IOT. The BAMC also indicated that further discussion is needed regarding the process by which members are added to the IRP-IOT.

    • Action:

      • ICANN org to prepare materials for BAMC consideration regarding proposed process by which new members will be added to the IRP-IOT.

Published on 22 January 2020