Draft Principles of the Advisory Committee
on Independent Review
Exhibit D to 27 May 1999 Meeting Minutes
After study and deliberation, the Advisory
Committee on Independent Review has drafted the following 11 principles,
which are intended to serve as a framework for the independent review
mechanism mandated in the ICANN
Bylaws at Article III, Section 4(b). Subject to public comment and
review, the Committee intends to submit these principles to the ICANN
Board as an Interim Report to be considered at the Board's Berlin meetings,
May 26-27, 1999.
The draft principles have been framed as responses to key questions,
and are accompanied by some explanatory comments.
Question 1: What form should the "independent third party" required by
the ICANN Bylaws take?
Principle 1: The "independent third party" shall be an Independent
Review Panel (IRP) consisting of nine (9) members, any three (3) of which
will adjudicate each claim.
[Comment 1: The Committee believes that independent review should be
conducted by a body that is independent of the ICANN Board of Directors,
both in its appointment and in its proceedings. Looking to the model
of many appellate courts around the world, the Committee concludes that
each claim for independent review should be resolved by a group of three
panelists: a panel of one would significantly increase the risk of arbitrariness;
a panel of two raises the possibility of deadlock; and a panel of four
or more would likely become unwieldy and inefficient. At the same time,
there are significant uncertainties about the nature and volume of future
claims for independent review. Because IRP panelists will serve essentially
in a voluntary capacity and may not always have adequate time to devote
to the IRP, and because of the likelihood that some panelists may have
conflicts of interest in some cases, the Committee believes that a group
of nine should be appointed, from which three panelists will be drawn
to resolve each individual claim. Moreover, a pool of nine panelists
is sufficiently large to make possible meaningful diversity in geographic
regions, legal systems, and so forth.]
Question 2: Who should appoint the members of the IRP?
Principle 2: The Members of the IRP shall be nominated by a Nominating
Committee and confirmed by a 2/3 vote of the ICANN Board. The Nominating
Committee shall be composed of individuals who are not members of the
ICANN Board of Directors.
[Comment 2: In order to assure the independence of the IRP, the Committee
believes that panelists should be chosen in the first instance by people
who are not ICANN Directors. Looking to the model of the IETF, a small
Nominating Committee composed of non-Directors appears to be an efficient
solution. To ensure that nominated candidates command the respect and
approval of a broad cross-section of ICANN's constituencies, the individuals
selected by the Nominating Committee should be subject to the approval
of a 2/3 supermajority of the ICANN Board.]
Question 3: Should the members of the IRP be chosen according to geographic
or other diversity?
Principle 3: The members of the IRP shall be chosen primarily on grounds
of competence and without reference to strict geographic or other quotas;
at the same time, the Nominating Committee shall take account of various
diversity factors, including diversity in geographic representation and
diversity in legal systems, in making its choices.
[Comment 3: While the Committee considers diversity of geographic region
and diversity of legal systems to be important components of a successful
independent review body, the Committee concludes that strict quotas
and/or complex formulas are unnecessary to achieve that goal. Rather,
the Nominating Committee should be directed to consider such diversities
in making its selections. The Committee believes that strict quotas
and/or complex formulas will needlessly interfere with the Nominating
Committee's primary directive, which is to choose panelists on the basis
of professional competence, as evidenced by their professional records,
accomplishments, reputations, and so forth.]
Question 4: For how long should the members of the IRP be appointed?
Principle 4: The Members of the IRP shall be appointed for terms of
six years. The initial Members of the IRP shall have terms of staggered
length: three initial Members shall be appointed for a 6-year term; three
for a 4-year term; and three for a 2-year term. Thus, three Members' terms
will expire every two years after the initial appointment.
[Comment 4: The Committee believes that the terms of IRP panelists
should be long enough to allow them to learn the ropes and develop experience
and competence on the job, and to promote a sense of independence in
decisionmaking. At the same time, the Committee recognizes that a term
of six years may discourage qualified individuals from assuming an essentially
voluntary commitment of that length. The Committee looks forward to
public input on this point.]
Question 5: Should independent review be available to challenge the Board's
failure to act, as well as Board actions? That is, should a claimant be
permitted to seek independent review on the ground that the Board had
not taken some action specifically required by the Bylaws?
Principle 5: A claim for independent review may be filed on the ground
that the Board has acted or failed to act in a manner contrary to the
Corporation's Articles of Incorporation and/or Bylaws.
[Comment 5: Because the ICANN Bylaws set forth duties as well as prohibitions,
the Committee believes that independent review should be available in
cases of failure to act as well as actions by the Board.]
Question 6: Who may file a claim for independent review?
Principle 6: Any individual or entity may file a claim if that individual
or entity has been materially affected by the contested action or failure
to act by the ICANN Board.
[Comment 6: This principle restates the "affected party" standard set
forth in the ICANN Bylaws, Art. III, Sec. 4(b). The Committee believes
that the term "affected party" sweeps too broadly, however, as nearly
every Internet user can be said to be affected in some quantum by nearly
any decision of the ICANN Board. Accordingly, the Committee recommends
that the conventional legal threshold of materiality be incorporated,
keeping independent review available to those individuals or entities
that have more directly been affected by the action (or failure to act)
Question 7: Should independent review claimants be required to first
avail themselves of ICANN's internal reconsideration process?
Principle 7: Individuals and entities must first exhaust ICANN's internal
reconsideration process before filing a claim for independent review by
the IRP. However, if ICANN's internal reconsideration process has not
been completed within 30 days after the filing of a request for reconsideration,
the complaining individual or entity may proceed directly to file a claim
for independent review.
[Comment 7: The Committee believes that complaining individuals should
first exhaust ICANN's internal reconsideration process before bringing
their claim before the IRP. A requirement of exhaustion of internal
remedies promotes efficiency by maximizing the odds that the ICANN Board
will resolve disputes on its own before they reach the IRP. In addition,
the IRP will benefit from any record of decision, including factual
investigation and findings, developed during the course of ICANN's internal
reconsideration process. At the same time, the Committee recommends
that complaining parties be allowed to come directly to the IRP in cases
in which ICANN's internal reconsideration process has not been concluded
within 30 days.]
Question 8: To what extent should the proceedings of the IRP be made
Principle 8: All claims, procedures, and decisions of the IRP shall
be made available via the Internet; however, the IRP shall have the power
to grant a party's request to keep certain information confidential, such
as trade secrets. For any matters that the IRP determines not to disclose,
the IRP's decision shall describe in generic terms the nature of the information
and the reason for such nondisclosure.
[Comment 8: This principle embodies the goal of openness and transparency
to the maximum extent feasible, while still recognizing that in certain
rare cases, a complaining party may wish to submit confidential business
information. Accordingly, the Committee believes that the IRP should
have the authority to keep such information confidential, while identifying
publicly the nature of the information and the reason for nondisclosure.]
Question 9: What powers should the IRP have?
Principle 9: The IRP shall have the authority to: (i) issue advisory
opinions on claims that an action or inaction of the ICANN Board was contrary
to the Corporation's Articles of Incorporation and/or Bylaws, (ii) request
additional written submissions from the claimant, the Board, the Supporting
Organizations, or from other parties, and (iii) recommend that the ICANN
Board stay any action or decision until such time as the Board reviews
and acts upon the opinions of the IRP.
[Comment 9: The Committee believes that the IRP should serve as a truly
independent body whose authority rests on its independence, on the prestige
and professional standing of its members, and on the persuasiveness
of its reasoned opinions. The Committee does not believe that the IRP
should have the power to overrule or stay decisions of the ICANN Board;
such a power would create a substantially less-accountable super-Board.
Rather, the Committee believes that the ICANN Board should retain ultimate
authority over ICANN's affairs - after all, it is the Board, not the
IRP, that will be chosen by (and is directly accountable to) the membership
and the supporting organizations. The role of the IRP, then, is to consider
(and investigate, where appropriate) claims that the ICANN Board has
violated its own Articles of Incorporation and/or Bylaws, to reach a
reasoned and persuasive decision, and to make public its conclusion
and the rationale for it. Such a decision will have to be taken seriously
by the Board, which retains ultimate authority to act on its conclusions.]
Question 10: Will the Members of the IRP be paid for their services?
Principle 10: Initially, the Members of the IRP shall be reimbursed
for their expenses. In the future, subject to the availability of funds
on the part of ICANN, the Members of the IRP should be paid a reasonable
fee for their professional services.
[Comment 10: The Committee believes that the Members of the IRP ought
to be paid for their professional services; however, the Committee understands
that sufficient funds may not presently be available. Accordingly, the
Committee recommends that the panelists at least be reimbursed for their
Question 11: How will the IRP conduct its proceedings?
Principle 11: In order to keep the costs and burdens of independent
review as low as possible, the IRP will conduct its proceedings by email
and otherwise via the Internet. Where necessary, the IRP may conduct proceedings
[Comment 11: Like the rest of the ICANN universe, the IRP ought to
conduct its affairs by means of the Internet. A key goal of the Committee
is to keep costs to complaining parties and ICANN as low as possible;
accordingly, the IRP process should not entail face-to-face hearings
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