Purpose: This public comment proceeding seeks community input on the Updated Supplementary Procedures (USP) for the ICANN Independent Review Process (IRP) developed per the requirements contained in the final report of the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability, Work Stream 1) and provided to the ICANN Board on 10 March 2016.
Current Status: The Updated Supplementary Procedures for Independent Review Process have been drafted by the IRP Implementation Oversight Team (IOT) in collaboration with the ICANN legal team and the external counsel to the CCWG-Accountability. The CCWG-Accountability reviewed these Supplementary Procedures at its 2 November 2016 meeting during ICANN57 and approved their publication for community input.
Next Steps: Following the public comment proceeding, the inputs will be analyzed by the IRP-IOT who will consider amending its USP in light of the comments received. If there are no significant issues, the final version of the Updated Supplementary Procedures for Independent Review Process along with the analysis of the public comments will be presented to the CCWG-Accountability for approval. Once approved, the CCWG-Accountability will forward the Updated Supplementary Procedures to the ICANN Board of Directors for final approval.
Section I: Description and Explanation
ICANN operates a separate process for independent third-party review of Disputes – the Independent Review Process (IRP). The International Centre for Dispute Resolution (ICDR) currently administers the ICANN Independent Review Processes. ICANN IRPs are governed by the ICDR's International Dispute Resolution Procedures as modified by Supplementary Procedures for the ICANN IRP.
The CCWG-Accountability Work Stream 1 (WS1) in its final report included the following under Implementation for Recommendation 7 concerning the IRP:
"The CCWG-Accountability proposes that the revised IRP provisions be adopted as Fundamental Bylaws. Implementation of these enhancements will necessarily require additional detailed work. Detailed rules for the implementation of the IRP (such as rules of procedure) are to be created by the ICANN community through a CCWG (assisted by counsel, appropriate experts, and the Standing Panel when confirmed), and approved by the Board, such approval not to be unreasonably withheld."
This part of the recommendations on IRP is included in the following section of the new ICANN Bylaws which were adopted on 27 May 2016:
"(n) Rules of Procedure
(i) An IRP Implementation Oversight Team shall be established in consultation with the Supporting Organizations and Advisory Committees and comprised of members of the global Internet community. The IRP Implementation Oversight Team, and once the Standing Panel is established the IRP Implementation Oversight Team in consultation with the Standing Panel, shall develop clear published rules for the IRP ("Rules of Procedure") that conform with international arbitration norms and are streamlined, easy to understand and apply fairly to all parties. Upon request, the IRP Implementation Oversight Team shall have assistance of counsel and other appropriate experts.
(ii) The Rules of Procedure shall be informed by international arbitration norms and consistent with the Purposes of the IRP. Specialized Rules of Procedure may be designed for reviews of PTI service complaints that are asserted by direct customers of the IANA naming functions and are not resolved through mediation. The Rules of Procedure shall be published and subject to a period of public comment that complies with the designated practice for public comment periods within ICANN, and take effect upon approval by the Board, such approval not to be unreasonably withheld."
In early in 2016 the CCWG-Accountability created the IRP IOT, which has been working on updating the Supplementary Rules of Procedures.
Given the IRP IOT is recommending significant changes to the Rules of Procedures it is publishing these for public comments.
Section II: Background
Revising the Independent Review Process was determined from the outset to be a key part of the CCWG-Accountability work.
Given the critical link between accountability and the IRP process the CCWG-Accountability undertook to review and improve the ICANN IRP to address the concerns raised in the consultation process and meet the requirements of the additional accountability mechanisms that it was proposing.
Following several public consultations on its recommendations the CCWG-Accountability published its final Work Stream 1 (WS1) recommendation in March 2016 at ICANN55 which were promptly accepted by the ICANN Board of Directors. These recommendations were then implemented as part of the revised ICANN Bylaws that came into effect on 1 October 2016.
The WS1 report identified that as part of the implementation of its recommendations, an Implementation Oversight Team would be formed from the CCWG-Accountability to do the following tasks:
Drafting the detailed supplementary rules of procedure for Board adoption (Updated Supplementary Procedures).
Process for the selection of organizations to administer the IRP.
Process for community review and selection of proposed slate of the standing panel members.
The IRP IOT agreed at its first meeting on 25 May 2016 that the most important task, which it needed to undertake was the drafting of the detailed supplementary rules so these could be approved by the ICANN Board of Directors.
The IRP Implementation Oversight Team (IOT) in collaboration with the ICANN legal team and the external counsel to the CCWG-Accountability proceeded to develop a draft set of Updated Supplementary Procedures over the summer and fall of 2016. The CCWG-Accountability reviewed these Supplementary Procedures at its 2 November 2016 meeting during ICANN57 and approved their publication for community input.