Minutes | Board Accountability Mechanisms Committee (BAMC) Meeting 12 April 2022

BAMC Attendees: Alan Barrett, Becky Burr, Edmon Chung, Sarah Deutsch, Patricio Poblete, León Sánchez, and Katrina Sataki

Other Board Member Attendees: Manal Ismail

ICANN organization Attendees: Michelle Bright (Board Operations Content Coordination Director), Franco Carrasco (Board Operations Specialist), Casandra Furey (Associate General Counsel), John Jeffrey (General Counsel and Secretary), Elizabeth Le (Associate General Counsel), Wendy Profit (Board Operations Senior Manager), and Amy Stathos (Deputy General Counsel)

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

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1. Consideration of the Procedural Evaluation of Reconsideration Request 22-1 – The BAMC received a briefing on a reconsideration request (Request 22-1) seeking reconsideration of alleged ICANN Board and staff action and inaction regarding the redaction of certain information from Resolutions 2022.01.16.01 – 2022.2016.04 that the ICANN Board approved on 16 January 2022 (Resolutions). The Resolutions authorized the ICANN President and CEO, or his designee(s), to renew the contracts with two vendors to provide support services to augment ICANN organization Engineering and Information Technology's (E&IT) capacity. The Requestor asserts that the redactions violate Article 3.1 of the ICANN Bylaws on openness and transparency and preclude the public from determining whether the requirements for the direct contracting selection process under Section 3.3 of the ICANN Procurement Guidelines were met. The Requestor explicitly states, however, that he is not challenging the Board's underlying decision to approve the renewal of the contracts. Article 4, Section 4.2(k) of the ICANN Bylaws provides that upon receipt of a reconsideration request, the BAMC is to review the request to determine if it is sufficiently stated. The BAMC may summarily dismiss a reconsideration request if the BAMC determines the request: (i) does not meet the requirements for filing reconsideration requests under the Bylaws; or (ii) it is frivolous. In evaluating whether a reconsideration request is sufficiently stated, the BAMC considered the following factors: (1) whether the reconsideration request is timely; and (2) whether the requestor met the requirements for bringing a reconsideration request. Following discussion, the BAMC requested that additional clarification regarding the sufficiently stated standard be added to the summary dismissal.

   • Action: ICANN org to have summary dismissal updated per the BAMC's request and to circulate the clarification for the Committee's consideration and approval.

2. Consideration of the Afilias Domains No. 3 Ltd. (Afilias) v. ICANN Independent Review Process (.WEB IRP) Final Declaration – Edmon Chung recused himself from the discussion noting potential conflicts of interest. The BAMC discussed the Board's request at its 10 March 2022 meeting that: (1) the BAMC review, consider and evaluate the allegations relating to the Domain Acquisition Agreement (DAA) between Nu DotCo LLC (NDC) and Verisign and the allegations relating to Afilias' conduct during the Auction Blackout Period; and (b) the BAMC provide the Board with its findings and recommendations as to whether the alleged actions of NDC and/or Afilias warrant disqualification or other consequences, if any, related to any relevant .WEB application. The BAMC discussed that the interested parties (Afilias, NDC and Verisign) have made numerous allegations through lengthy extensive briefing within the .WEB IRP and through various correspondence to the Board and ICANN's outside counsel. The BAMC noted that in order to review, consider, and evaluate these allegations as directed by the Board 10 March 2022 resolution, it would be helpful to request that the interested parties provide a comprehensive summary of their allegations to the BAMC. The BAMC further discussed timing, page limitations, and the procedures of the submission process. The BAMC requested ICANN org to prepare a communication to the interested parties regarding the BAMC's request.

   • Action: ICANN org to prepare a communication to the interested parties regarding the BAMC's request and distribute to the BAMC for review before sending.
3. Update re Independent Review Process (IRP) Standing Panel Selection and Implementation Oversight Team (IRP-IOT) – The BAMC received a status update on the composition of the omnibus IRP Standing Panel. The org reported that on 17 February 2022, the names of the IRP Community Representatives Group were announced (Group). The Group members, which were selected by their respective Supporting Organizations and Advisory Committees, are responsible for proposing a slate of nominees, for confirmation by the ICANN Board of Directors, to constitute the omnibus Standing Panel that will preside over disputes filed under the IRP described in the ICANN Bylaws. The IRP Standing Panel candidates (Candidates) have been informed of the Group membership and have been asked to identify if they know any of the Group members. The Rules of Engagement, which govern how the parties involved in the selection process should conduct themselves, have been finalized and shared with the Candidates and the Group members. The Group has held four meetings to date. They have selected David McAuley as the Group Chair. The Group is in the process of assessing the possible firms that will consult and lend expertise to the Gorup in selecting a slate of panelist to nonimate to the Board for approval. The BAMC also received an update on the work of the IRP-IOT in updating the IRP to align with post-transition Bylaws. The BAMC Chair informed the Committee that León Sánchez has been selected by the Board Governance Committee to fill the vacant seat as a member on the IRP-IOT.
4. Litigation Update – The BAMC received a litigation update.

Published on 30 May 2022