icannwiki

Independent Review Process

Revision as of 15:42, 2 February 2023 by Jessica (talk | contribs) (→Previous and Current IRPs)

The Independent Review Process (IRP) is an ICANN Accountability mechanism that provides third-party review of ICANN's actions.[1]

Overview edit

The IRP provides a means for claimants to bring their dispute with ICANN to a third party arbiter. It is an arbitration mechanism that seeks to establish precedent and predictability of interpretation of ICANN policy and principles, as well as create an alternative forum for resolving disputes. The decision rendered in an IRP is intended to be a final and binding resolution of all the issues raised by the claimant.

Background edit

The development of the Independent Review Policy began in March 1999. The initial ICANN Board appointed a 10-member Advisory Committee on Independent Review in charge of developing the principles to structure independent review procedures in compliance with the ICANN Bylaws. On May 7, 1999, the Advisory Committee submitted its interim report with draft principles and an addendum for public review and comment.[2][3]

On August 6, 1999, the Advisory Committee submitted the Final Report: Principles for Independent Review. The ICANN Board published the document for public comment and accepted it at ICANN 3 in August 1999.[4]

During ICANN 5, the ICANN Staff submitted the proposed Independent Review Policy. The policy was a guideline on how to implement the principles recommended by the Advisory Committee.[5] The policy was adopted by the ICANN Board on March 10. An Independent Review Panel Nominating Committee was delegated to nominate 9 members who would comprise the Independent Review Panel.[6] The initial members of the IRP Nominating Committee included:[7]

On May 7, 2001, the IRP Nominating Committee received instructions from the Board to seek qualified applicants for membership on the IRP within 90 days.[8] Following the directive, the IRP Nominating Committee issued a call to the Internet community to submit nominations on June 26, 2001.[9] The IRP Nominating Committee was unsuccessful in completing the list of candidates for the IRP Panel on the deadline set by the ICANN Board and requested an extension. During the ICANN Meeting in Montevideo, the Board approved the request of the IRP Nominating Committee and extended the deadline to submit the list of the candidates for the IRP until October 15, 2001.[10] The IRP Nominating Committee was not able to provide a complete list during the extended deadline. Only three members of the committee submitted a list of 9 nominees while the other members did not participate in the process. A report on the status of the committee was submitted during the ICANN Meeting in Accra, Ghana on March 14, 2002. The nine individuals nominated for the IRP Panel included: [11]

  1. Zoe Baird (US)
  2. Diane Cabell (US)
  3. Scott Donahey(US)
  4. David Post (US)
  5. Michael Kirby (AU)
  6. Houston Putnam (US)
  7. Margit Brandl (AT)
  8. Henry Perritt (US)
  9. Zheng Chengsi (CN)

On March 14, 2002, the challenge and difficulties faced by the IRP Nominating Committee was referred to the Evolution and Reform Committee, then chaired by Alejandro Pisanty with Lyman Chapin, Phil Davidson, Hans Kraaijenbrink, and Nii Quaynor serving as members. The Reform and Evolution Committee was created by the ICANN Board to develop a framework for the implementation of reforms on ICANN's structure and procedures.[12] ICANN adopted its new Bylaws on December 15, 2002. Artcle IV Section 3 of the revised Bylaws mandated an independent review process without the involvement of an IRP Nominating Committee.[13]

Purpose and Process edit

Under the current ICANN Bylaws, IRP is intended to hear and resolve disputes for nine purposes:

  1. Ensure that ICANN does not exceed the scope of its Mission and otherwise complies with its Articles of Incorporation and Bylaws;
  2. Empower the global Internet community and Claimants to enforce compliance with the Articles of Incorporation and Bylaws through meaningful, affordable and accessible expert review of Covered Actions;
  3. Ensure that ICANN is accountable to the global Internet community and Claimants;
  4. Address claims that ICANN has failed to enforce its rights under the IANA Naming Function Contract;
  5. Provide a mechanism by which direct customers of the IANA naming functions may seek resolution of PTI service complaints that are not resolved through mediation;
  6. Reduce Disputes by creating precedent to guide and inform the Board, Officers, Staff members, Supporting Organizations, Advisory Committees, and the global Internet community in connection with policy development and implementation;
  7. Secure the accessible, transparent, efficient, consistent, coherent, and just resolution of Disputes;
  8. Lead to binding, final resolutions consistent with international arbitration norms that are enforceable in any court with proper jurisdiction; and
  9. Provide a mechanism for the resolution of Disputes, as an alternative to legal action in the civil courts of the United States or other jurisdictions.[14]

Definitions edit

  • Covered Actions are defined as "any actions or failures to act by or within ICANN committed by the Board, individual Directors, Officers, or Staff members that give rise to a Dispute."
  • Disputes are defined as:
    • Claims that Covered Actions constituted an action or inaction that violated the Articles of Incorporation or Bylaws, including but not limited to any action or inaction that: (1) exceeded the scope of the Mission; (2) resulted from action taken in response to advice or input from any Advisory Committee or Supporting Organization that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; (3) resulted from decisions of process-specific expert panels that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; (4) resulted from a response to a DIDP (as defined in Section 22.7(d)) request that is claimed to be inconsistent with the Articles of Incorporation or Bylaws; or (5) arose from claims involving rights of the EC as set forth in the Articles of Incorporation or Bylaws.
    • Claims that ICANN, the Board, individual Directors, Officers or Staff members have not enforced ICANN's contractual rights with respect to the IANA Naming Function Contract; and
    • Claims regarding PTI service complaints by direct customers of the IANA naming functions that are not resolved through mediation.
    • Article 4.3(c) expressly excludes the following types of claims from the scope of the IRP: EC challenges to the result(s) of a PDP, unless the Supporting Organization(s) that approved the PDP supports the EC bringing such a challenge; claims relating to ccTLD delegations and re-delegations; claims relating to Internet numbering resources; and claims relating to protocol parameters.[14] In other words, the IRP may not be used to appeal or challenge the core functions of ICANN's mission, or undermine bottom-up policy development.
  • The Cooperative Engagement Process (CEP) is an optional, preliminary, non-binding process "to resolve and/or narrow the Dispute." Parties to a CEP may request an IRP Mediator to facilitate meetings under the CEP. The IRP Mediator is ineligible for appointment to the IRP Panel regarding the Dispute.
  • The IRP Panel is a three-member panel appointed to preside over and make findings and decisions regarding a Dispute.
  • The IRP Provider is the "well-respected international dispute resolution provider" that administers proceedings under the IRP. The current IRP Provider is the International Centre for Dispute Resolution (ICDR).[15]

Procedure edit

An IRP follows the rules established by the ICDR for international arbitrations[16] and the interim supplementary procedures for ICANN's IRP drafted by the IRP-IOT.[17]

  • The supplementary procedures set a time limit on filing a Dispute. The Claimant must submit a written statement of a Dispute within 120 days after they become aware of the material effect of the action or inaction giving rise to the Dispute. This permits some tolling of the time limit based on when the Claimant "becomes aware" of the impact of an action or inaction. However, the Claimant must file the statement of the Dispute within 12 months from the date of the action or inaction.[17] In addition, all fees must be paid within three days of the filing of the request to initiate the IRP.
  • Fees for filing the Dispute vary based on the amount of damages claimed.
    • In most cases, the monetary impact of an ICANN Board decision are indeterminate, and in some cases there is no claim for monetary relief. As a result, the initial filing fee will be either $3,750 (nonmonetary claim) or $8,625 (indeterminate monetary claim).[18]
    • If the case proceeds to the first hearing, a final fee of $2,875 (nonmonetary) or $10,350 (indeterminate) is due prior to the date of the first hearing.[18]
    • The supplementary procedures do contain a "prevailing party" provision, allowing the arbitration panel to "shift and provide for the losing party to pay administrative costs and/or fees of the prevailing party." This provision only applies to administrative costs and filing fees submitted to ICDR.[17]
    • Each party is responsible for its own legal costs, except that ICANN shall cover the full cost of an IRP brought by the Empowered Community.[17] In the event that the Claimant does not "participate in good faith" in the Cooperative Engagement Process and ICANN is the prevailing party in the IRP, the IRP Panel "shall award to ICANN all reasonable fees and costs incurred by ICANN in the IRP, including legal fees."[14]
  • The supplementary procedures require the IRP Panel to "consider accessibility, fairness, and efficiency (both as to time and cost) in its conduct of the IRP."[17] They also establish a strong presumption against in-person meetings and witness testimony for hearings related to the dispute. In each case, the IRP Panel may only permit an in-person proceeding or witness testimony if it determines that it is necessary for fairness, necessary for furtherance of the Purposes of the IRP, and that those considerations outweigh the time and financial expense of in-person hearings or witness testimony and cross-examination.[17]
  • The supplementary procedures presume the existence of an IRP Standing Panel, but in the event that the standing panel does not exist at the initiation of the Dispute, the ICDR shall select members of the panel based on its rules.[17]

Amendments and Evolution edit

The First Accountability and Transparency Review included recommendations related to ICANN Accountability mechanisms, including the then-current IRP:

23. As soon as possible, but no later than June 2011, the ICANN Board should implement Recommendation 2.7 of the 2009 Draft Implementation Plan for Improving Institutional Confidence which calls on ICANN to seek input from a committee of independent experts on the restructuring of the three review mechanisms - the Independent Review Panel (IRP), the Reconsideration Process and the Office of the Ombudsman. This should be a broad, comprehensive assessment of the accountability and transparency of the three existing mechanisms and of their inter-relation, if any (i.e., whether the three processes provide for a graduated review process), determining whether reducing costs, issuing timelier decisions, and covering a wider spectrum of issues would improve Board accountability. The committee of independent experts should also look at the mechanisms in Recommendation 2.8 and Recommendation 2.9 of the Draft Implementation Plan. Upon receipt of the final report of the independent experts, the Board should take actions on the recommendations as soon as practicable.[19]

In response to the recommendation, the board convened the Accountability Structures Expert Panel (ASEP) to review and assess ICANN's accountability mechanisms.[20] The panel submitted its report to the board in October 2012.[21] Among the recommendations included in the report was a call for an omnibus standing panel to provide "a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work" in the panelist pool for the IRP. The ASEP also recommended the creation of the Cooperative Engagement Process, several procedural refinements, and adjustments to the timeline and workflow of an IRP proceeding.[21] These recommendations were incorporated into the ICANN Bylaws by amendment in April 2013.[22]. Despite its inclusion in the Bylaws, the standing panel was not formed.

As part of the IANA Transition in 2016, the Bylaws governing the IRP were amended again to implement changes proposed by the Cross Community Working Group on Accountability. In addition to other details, the amendments established the IRP Implementation Oversight Team (IRP-IOT) to assist in implementing the changes. IRP-IOT and ICANN org initiated a process of recruiting for a Standing Panel for ICDR to draw from when establishing IRP Panels. The effort appeared to fizzle out in 2018.[23] The IRP-IOT was "had difficulties in achieving active participation or quorum with its current membership at regularly scheduled meetings."[24] An effort to re-compose the IRP-IOT and gain more traction on its goals and objectives was initiated by the board in November 2019.[24] At its meeting in October 2020, the Board Accountability Mechanisms Committee received an "update" on that effort, although few details are available.[25] The BAMC received a similar briefing in April 2021,[26] and again in July 2021.[27] A more substantive discussion occurred at the BAMC meeting of December 8, 2021:

The BAMC noted that the IRP-IOT has been focusing its work over the past two years on updating the IRP Supplementary Procedures, and that much of this work has centered on the [rule defining the] time for filing an IRP. The IRP-IOT has also created subgroups to address the remaining areas of the Supplementary Procedures. The BAMC discussed the importance of moving the work on updating the Supplementary Procedures along and asked ICANN org for recommendations on how to move the work along.[28]

The BAMC also noted that the departure of Nigel Roberts had left a vacant board representative seat on the IRP-IOT. ICANN org was tasked with recommending ways to move the work on IRP Supplementary Procedures along; the BAMC Chair was also instructed to ask the chair of the Board Governance Committee to call for expressions of interest from board members to serve on the BAMC.[28] As noted by the BAMC in December 2021, since the reconstruction of the IRP-IOT, there has to date been little effort focused on establishing a standing panel.[28] In February 2022, ICANN announced the establishment of the IRP Community Representatives Group, which was created to assist the SOs and ACs in creating a slate of nominees for the Board to consider as the first omnibus standing panel.[29]

Previous and Current IRPs edit

Claimants Status Subject Domain Decision Dates
GCCIX, W.L.L. open .gcc ICANN reported that it is pursuing Board Accountability Mechanisms Committee (BAMC) input with respect to consideration of any further action on GCCIX’s application.[30] June 2021 -
Namecheap, Inc. closed .org, .info, .biz ICANN’s Price Cap Decision was inconsistent with the ICANN Bylaws and Article III of the Articles of Incorporation. Each party shall bear its own legal and expert witness fees and expenses, except that the administrative costs of the ICDR, totaling $13,825.00 and the IRP Panel members’ along with the Emergency Panelist’s fees and expenses, totaling $ 841,894.76 shall be borne entirely by ICANN. Namecheap is the prevailing party; ICANN shall reimburse Namecheap the sum of $58,750.00[31] February 2020 - December 2022
Fegistry, LLC, Minds + Machines Group Limited, Radix Domain Solutions Pte. Ltd., and Domain Ventures Partners PCC Limited open[32] .hotel December 2019 -
Afilias Domains No. 3 Limited .web ICANN acted contrary to its Articles and Bylaws, breaching the Guidebook and Auction Rules through its arrangements with Verisign. However, the Panel denied the Claimant’s request to disqualify NDC’s bid for .WEB and proceed with contracting the Registry agreement for .WEB with the Claimant, in exchange for a price to be specified by the Panel and paid by the Claimant. November 2018 - August 2022
Amazon closed .amazon The Board acted in a manner inconsistent with its Articles, Bylaws and Applicant Guidebook by giving complete deference to the consensus advice of the GAC. It failed to exercise the requisite degree of independent judgment in making its decision. The Board failed to explain its decision. The failure of the GAC to give Amazon an opportunity to submit a written statement of its position to the GAC violated the basic procedural fairness requirements for a constituent body of ICANN. In denying Amazon’s applications, ICANN Board did not violate the Bylaws’ prohibition against disparate treatment. Amazon’s objections to changes made to the Applicant Guidebook are untimely. March 2016 - July 2017
Commercial Connect, LLC terminated .shop The Claimant failed to pay its required share of the funding for the IRP to take place, so the IRP was terminated 10 February 2016 - 11 April 2017
Commercial Connect, LLC closed .shop 27 January 2016 - 12 February 2016
Asia Green IT Systems Bilgisayar San. ve Tic. Ltd. Sti. closed .islam, .halal Asian Green is the prevailing party; ICANN acted inconsistently with its core values by lacking transparency and placing applications on hold and shall reimburse Asian Green $93,000+ 9 December 2015 - 30 November 2017
Afilias Limited, BRS Media, Inc. & [[Tin Dale], LLC withdrawn .radio 5 October 2015 - 31 May 2016
Corn Lake, LLC .charity the ICANN Board’s 12 October 2014 Decision and Action (as preceded by its February 2014 Decision and Action) is a “decision or action by the Board” that is “inconsistent with the Articles of Incorporation of Bylaws” of ICANN and “materially affected” the Claimant. However, Its ability to do so must be preserved as being in the best interests of the Internet community as a whole. ICANN shall not be responsible for bearing all costs of the proceedings. Instead, pursuant to Article 11 of the Supplementary Rules, the IRP Panel determines that no costs shall be allocated to the Claimant as the prevailing party. Consequently, each Party shall bear its own costs for this IRP Panel proceeding. 7 April 2015 - 17 October 2016
dot Sport Limited .sport ICANN failed to consider evidence of bias in the Expert Determination, should reconsider its reconsideration decisions, and has to reimburse the claimant 24 March 2015 - 31 January 2017
Little Birch LLC and Minds + Machines Group Limited & Despegar Online SRL, Donuts Inc., Famous Four Media, Limited, Fegistry, LLC, and Radix FZC .eco, .hotel IRP Request made in relation to the .hotel gTLD by Despegar Online SRL, Donuts Inc., Famous Four Media Limited, Fegistry LLC, and Radix FZC is denied. ICANN was the prevailing party in the .hotel IRP; IRP Request made in relation to .eco gTLD by Little Birch, LLC, and Minds + Machines Group Limited is denied; ICANN as the prevailing party in the .eco IRP. Declares that the fees and expenses of the IRP Panel members, totaling US$113,351.52, and the fees and expenses of the ICDR, totaling US$11,500.00, shall be born as to half by ICANN, and as to the other half collectively by Despegar Online SRL, Donuts Inc., Famous Four Media Limited, Fegistry LLC, Radix FZC, Little Birch, LLC and Minds +Machines Group Limited ("Applicants"). Therefore, ICANN shall reimburse the Applicants collectively the sum of $5,750.00 representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by the Applicants 10 March 2015 - 12 February 2016
Gulf Cooperation Council (GCC) .persiangulf the Claimant Gulf Cooperation Council (“GCC”) was the prevailing Party. ICANN was inconsistent with the Articles of Incorporation and Bylaws. However, the ICANN Board should take no further action on the ".persiangulf" gTLD application, and in specific not sign the registry agreement with Asia Green. The IRP awarded all costs to the GCC as the prevailing Party. 5 December 2014 - 15 December 2016
Donuts Inc. .sports, .rugby ICANN prevailed; Donuts bore all costs except ICANN's own legal fees 13 October 2014 - 5 May 2016
Dot Registry, LLC .inc, .llc, .llp Dot Registry is the prevailing party; ICANN Board failed to apply the proper standards in its reconsiderations and acted inconsistently with the AoI and Bylaws and ICANN bore all the costs of the IRP 22 September 2014 - 29 July 2016
Merck .merck, .merckmsd ICANN is the prevailing party; Merck bore all costs 17 July 2014 - 11 December 2015
Vistaprint Limited .webs ICANN is the prevailing party; however, the IRP costs were split between the parties in a 60% (Vistaprint) / 40%
(ICANN) proportion. The IRP recommended that ICANN’s Board exercise its judgment on the question of whether an

additional review mechanism is appropriate to re-evaluate the Third Expert’s determination in the Vistaprint SCO 		11 June 2014 - 9 October 2015
Better Living Management Co, Ltd closed .thai 26 March 2014 - 17 July 2014
Booking.com .hotels ICANN is the prevailing party; however, the costs were split evenly between the parties and ICANN should consider the string similarity issues raised ahead of the next round of the New gTLD Program 18 March 2014 - 3 March 2015
DCA Trust .africa the Board violated ICANN’s Articles of Incorporation, Bylaws, and the Applicant Guidebook by:
• Discriminating against DCA and wrongfully assisting the AUC and ZACR to obtain rights to the .AFRICA gTLD;
• Failing to apply ICANN’s procedures in a neutral and objective manner, with procedural fairness when it accepted the GAC Objection Advice against DCA; and
• Failing to apply its procedures in a neutral and objective manner, with procedural fairness when it approved the BGC’srecommendation not to reconsider the NGPC’s acceptance of the GAC Objection Advice against DCA. DCA is the prevailing party and is entitled to its costs. The IRP recommended that ICANN cease all preparations to delegate the .AFRICA gTLD to ZACR; permit DCA’s application to proceed through the remainder
of the new gTLD application process; and compensate DCA for the costs incurred as a result of ICANN’s violations of its Articles of Incorporation, Bylaws, and AGB.
Manwin Licensing International jointly dismissed .xxx settled 2011-2013
ICM .xxx ICM Registry is the prevailing party 2008-2011

References edit

  1. ↑ ICANN Bylaws, Article 4.3, as amended November 28, 2019
  2. ↑ Interim Report of the Advisory Committee on Independent Review, May 7, 1999
  3. ↑ The documents were publicly discussed at ICANN 2 in May 1999. After deliberations, the ICANN Board accepted the draft principles and the Advisory Committee was instructed to complete its task. ICANN Minutes of Meeting, May 27, 1999
  4. ↑ ICANN Minutes of Meeting August 26, 1999
  5. ↑ ICANN 5 Archive - Proposed Independent Review Policy
  6. ↑ Independent Review Panel Nominating Committee
  7. ↑ Independent Review Panel Nominating Committee
  8. ↑ Special Meeting of the Board Preliminary Report May 7, 2001
  9. ↑ Open Call to the Internet Community For Nominations to the ICANN IRP
  10. ↑ Regular Meeting of the ICANN Board in Montevideo Preliminary Report
  11. ↑ ICANN Accra Meeting Topic: Implementation of Independent Review Policy
  12. ↑ ICANN Meeting in Accra Preliminary Report, March 14, 2002
  13. ↑ The New Bylaws Effective as of December 15, 2002
  14. ↑ 14.0 14.1 14.2 ICANN Bylaws, Article 4.3: Independent Review Process, as amended November 2019
  15. ↑ ICDR.org - ICANN Programs
  16. ↑ ICDR Rules, International Arbitrations (PDF)
  17. ↑ 17.0 17.1 17.2 17.3 17.4 17.5 17.6 ICDR.org - Interim Supplementary Procedures for ICANN IRP (PDF)
  18. ↑ 18.0 18.1 ICDR.org Schedule of Fees, amended and effective October 2017 (PDF)
  19. ↑ ATRT1 - Final Recommendations, December 31, 2010 (PDF)
  20. ↑ ICANN.org - ICANN Launches ASEP, September 11, 2012
  21. ↑ 21.0 21.1 ICANN.org Archive - Report by the ASEP, October 2012 (PDF)
  22. ↑ ICANN.org Bylaws Archive, Article 4 as amended April 11, 2013
  23. ↑ ICANN.org - Updating the IRP, last updated November 1, 2018
  24. ↑ 24.0 24.1 Resolutions of the Board regarding IRP-IOT Recomposition, November 3, 2019
  25. ↑ ICANN.org - Minutes of BAMC Meeting, October 14, 2020
  26. ↑ ICANN.org - Minutes of BAMC Meeting, April 16, 2021
  27. ↑ ICANN.org - Minutes of BAMC Meeting, July 28, 2021
  28. ↑ 28.0 28.1 28.2 ICANN.org - Minutes of BAMC Meeting, December 8, 2021
  29. ↑ ICANN.org - Community Representatives Chosen to Nominate the IRP Omnibus Standing Panel, February 17, 2022
  30. ↑ GCCIX Procedural Order 4, IRP, ICANN Files
  31. ↑ Final Declaration, Namecheap IRP, ICANN Files
  32. ↑ Fegistry et al IRP Procedural Order 10, ICANN Files

Governmental Advisory Committee. Considers and provides advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN's policies and various laws and international agreements or where they may affect public policy issues (ICANN Bylaws).

Retrieved from "https://icannwiki.org/index.php?title=Independent_Review_Process&oldid=1345950"