Message from John Jeffrey to Edward Hasbrouck
From: John Jeffrey
Date: December 4, 2005
To: Edward Hasbrouck
Cc: Vint Cerf, Daniel Halloran
Subject: IRP Request
Dear Mr. Hasbrouck,
Thank you for forwarding your messages and requests to ICANN's Board and staff and for your additional clarification of your request during the Public Forum.
We now understand from your recent communications, and particularly your comments at the open microphone at today's Public Forum in Vancouver, that you are still interested in pursuing an Independent Review Process, as set out in the ICANN Bylaws. The issue that you are setting forth as I understand it from your correspondence is whether ICANN made appropriate efforts to conduct the STLD process with as much transparency as was "feasible", consistent with the goal ICANN has established for itself in its Bylaws to operate "to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness." <http://www.icann.org/general/bylaws.htm#III-1>
My original message to you <http://www.icann.org/correspondence/jeffrey-to-hasbrouck-12may05.htm> (dated 12 May 2005) described the extensive opportunities for public input and public information that was made available to interested parties during the course of the STLD process, including the public development of the process and criteria, the public posting of the non-confidential portions of the STLD applications <http://www.icann.org/tlds/stld-apps-19mar04/stld-public-comments.htm>, and the public review of the proposed agreements with the successful applicants. Most recently, we have also posted the evaluation reports and associated materials requested and submitted during the evaluation process <http://www.icann.org/tlds/stld-apps-19mar04/>. We disagree with your assessment that you have been "materially affected" by an action of the ICANN Board.
Please note that ICANN's agreement to have your concerns reviewed by an arbitrator will not bring a halt to ICANN's work or .TRAVEL's implementation. ICANN's Bylaws do provide that an Independent Review Panel may "recommend that the Board stay any action," but the Bylaws do not provide that any individual request for independent review by itself creates an automatic stay.
Lastly, we were unable to find anywhere in your correspondence a confirmation that you acknowledge that ICANN's Bylaws provide that "The party not prevailing shall ordinarily be responsible for bearing all costs of the IRP Provider." <http://www.icann.org/general/bylaws.htm#IV-3.12>, as we have previously asked you to acknowlege. If you do intend to go forward with an IRP complaint, we will refer your complaint to an Independent Review Panel, but we must be assured that you will be willing and able to post the appropriate payments (approximately US$3250 for the filing fees portion of the IRP costs) before commencement of any action, and that you will be prepared to pay all the costs of the IRP provider in the event that you do not prevail in this action.
Assuming that this is acceptable, please provide us with your formal IRP request and we will forward your request to the International Centre for Dispute Resolution which ICANN has designated to provide independent review services in accordance with the Bylaws. Details about ICDR's procedures and fees are available on their website at <http://www.adr.org/International>.
Additionally, we are interested in whether you have engaged Tralliance directly regarding your grievances, and ask that you provide us with information regarding this if you intend to proceed with your request for relief so that we can understand how any harm may or may not have been remedied.
Thank you for your attention. Please feel free to call or write if you have any questions.
John O. Jeffrey