interestingly.
Sorry the news in Spanish. Cheers


http://www.lanacion.com.ar/1811492-robots-vs-humanos-la-pelea-que-viene-en-el-mundo-laboral



2015-07-22 12:04 GMT-03:00 Carlos Raúl Gutiérrez <[log in to unmask]>:

> Thank you Robin for this excellent commentary.
>
> Best
>
> Carlos Raúl Gutiérrez
> +506 8837 7176
> Skype: carlos.raulg
>
> On 22 Jul 2015, at 1:43, Robin Gross wrote:
>
>  Hi all,
>>
>> I recently wrote this analysis of the .africa Independent Review Panel
>> (IRP) Declaration, which has implications for other gtlds that may have
>> been similarly denied.
>>
>> Thanks,
>> Robin
>>
>>
>> http://www.ipjustice.org/internet-governance/icann-accountability-deficits-revealed-in-panel-ruling-on-africa/
>>
>> ICANN Accountability Deficits Revealed in Panel Ruling on .AFRICA
>>
>> “Fortress ICANN” No Longer Able to Shield Itself from Accountability
>>
>> In an important test of ICANN’s primary accountability mechanism, its
>> Independent Review Process (IRP), the organization has been handed a
>> stinging blow over its mishandling of the bid for the new generic Top-Level
>> Domain (gTLD) .AFRICA.
>>
>> At the crux of the issue are two competing applications for the .AFRICA
>> new gTLD and the decision by ICANN’s Board to abdicate its responsibility
>> to ensure that ICANN’s evaluation and subsequent rewarding of the domain
>> was carried out fairly, transparently, and in accordance with the
>> organization’s Bylaws, Articles of Organization, and established policies.
>>
>> The unanimous IRP Panel of 3 distinguished adjudicators declared that
>> both the actions and inactions of ICANN’s Board with respect to the
>> application of DotConnect Africa Trust for the .AFRICA gTLD were
>> inconsistent with ICANN’s Articles of Incorporation and Bylaws. The Panel
>> found that both ICANN’s Board, and its constituent body, the GAC, breached
>> their obligations to act transparently and in conformity with procedures
>> that ensured fairness.
>>
>> As a result, the Panel recommended that ICANN continue to refrain from
>> delegating the .AFRICA gTLD and permit DCA Trust’s application to proceed
>> through the remainder of the new gTLD application process. Although the
>> award did not include reimbursing DCA Trust’s legal fees and expenses,
>> ICANN was found to be liable for bearing all the costs of the IRP and the
>> totality of the costs of the IRP provider, more than U.S. $400,000.
>>
>> Several days after the Panel’s unanimous declaration, the ICANN Board of
>> Directors met on 16 July 2015 and decided to accept the Panel’s finding and
>> place DCA Trust’s application back in the evaluation process. Given the
>> growing pressure on ICANN to accept meaningful accountability reform,
>> including an independent IRP that is truly capable of correcting the
>> organization’s mistakes, the Board had little choice but to accept the
>> Panel’s recommendation.
>>
>> The Panel noted that the IRP is the only independent third-party process
>> that allows review of board actions to ensure their consistency with the
>> Articles of Incorporation and Bylaws. Furthermore ICANN requires all new
>> gTLD applicants to relinquish all their rights to seek redress against
>> ICANN in courts of law for any harm caused by ICANN or any misconduct by
>> ICANN.
>>
>> Accountability requires that an organization explain or give reasons for
>> its activities, accept responsibility for them, and disclose the results in
>> a transparent manner. Not only did ICANN fail to provide a rationale for
>> denying DCA Trust’s application, it did not even require that a reason be
>> provided before killing the application that ICANN was paid $185,000 to
>> evaluate fairly. Neither principles of equity nor ICANN’s corporate Bylaws
>> and Articles would allow that decision to stand unchallenged.
>>
>> ICANN’s Board Violated Its Obligations of Due Diligence and Fairness
>>
>> After ICANN’s Governmental Advisory Committee (GAC) issued “consensus
>> advice” objecting to DCA Trust’s application, ICANN’s Board summarily
>> awarded the .AFRICA domain to the African Union Commission, DCA Trust’s
>> competitor. When DCA Trust filed for a reconsideration of that Board
>> decision based on irregularities and non-transparency of the GAC decision
>> making process and also based on allegations of staff misconduct
>> discriminating against DCA Trust, the reconsideration request was also
>> dismissed out of hand by ICANN’s Board.
>>
>> However ICANN’s Bylaws require the organization’s Board and its internal
>> constituent bodies to operate to the maximum extent feasible in an open and
>> transparent manner and consistent with procedures designed to ensure
>> fairness.
>>
>> Due diligence required a conversation with the GAC about its objection,
>> even where the advice was consensus advice. But ICANN’s Board was found to
>> give undue deference to the GAC objection and failed to investigate the
>> basis for the decision, even though it is consensus advice.
>>
>> This IRP declaration is important because it implies the board can no
>> longer passively accept GAC consensus advice to object to a new gTLD
>> application (or anything else) without conducting adequate diligence into
>> the decision making process and exercising independent judgment of its own.
>> ICANN’s Board cannot hide behind murky “GAC objections” to block
>> applications given the Board’s affirmative duties of due diligence and
>> fairness in carrying out its activities.
>>
>> What this ruling reveals is that GAC has been granted too much autonomy
>> in ICANN’s decision making process given the Board’s ultimate
>> responsibility for GAC as a “constituent body” of ICANN. But ICANN’s Board
>> has no involvement in, much less control over, whether the GAC grants to
>> any party voting membership status; that decision remains within the sole
>> discretion of the GAC. Thus, although the Board is legally responsible for
>> the decisions, GAC holds a growing power over those decisions, but bears no
>> legal responsibility for them.
>>
>> ICANN’s board failed to conduct due diligence and investigate if the
>> organization’s constituent bodies, the GAC in particular, were operating in
>> a manner of openness, transparency, and fairness.
>>
>> Because the board did not investigate allegations of inappropriate staff
>> conduct after being put on notice of discriminatory actions, it was found
>> to have violated the organization’s Bylaws’ obligation to exercise
>> appropriate care and diligence in carrying out its duties and activities.
>> By failing to apply ICANN procedures in a neutral and objective manner with
>> procedural fairness, ICANN breached its Articles and Bylaws.
>>
>> ICANN’s Board Gave Improper Deference to Unaccountable Government
>> Advisory Committee
>>
>> The Guidebook lists three specific reasons why GAC could issue a
>> consensus objection to a gTLD application, yet upon investigation, the IRP
>> Panel uncovered that GAC is not constrained in any manner, and in
>> operation, it can object to a domain name application for any reason or for
>> no reason at all.
>>
>> The Panel noted that GAC’s own witness, its former Chair, Heather Dryden,
>> admitted during the IRP hearing that GAC did not act with transparency nor
>> in a manner designed to ensure fairness.
>>
>> In her testimony, GAC’s former Chair explained that, “there isn’t GAC
>> agreement about what the rights are” of the contending parties, and that
>> “not all countries have a shared view about what those entities … should be
>> able to do.” Dryden went on to explain, “because that would only get
>> clarified if there is a circumstance where that link is forced. In our
>> business we talk about creative ambiguity. We leave things unclear so we
>> don’t have conflict.”
>>
>> Ms. Dryden also stated that the GAC made its decision without providing
>> any rationale and primarily based on politics rather than on potential
>> violations of national laws and sensitivities. Indeed she testified that
>> GAC is not required to provide any rationale with its consensus objections.
>>
>> Testimony from its former Chair at an IRP hearing was shockingly
>> illuminating on how GAC reaches decisions:
>>
>> Arbitrator Kessedjian:
>> So, basically you’re telling us that the GAC take a decision to object to
>> an applicant, and no reasons, no rationale, no discussion of the concepts
>> that are in the rules?
>>
>> The Witness:
>> I’m telling you the GAC did not provide a rationale. And that was not a
>> requirement for issuing a GAC –
>>
>> Honorable Judge Cahill:
>> But you are also want to check to see if the countries are following the
>> right – following the rules, if there are reasons for rejecting this or it
>> falls within the three things that my colleague’s talking about.
>>
>> The Witness:
>> The practice among governments is that governments can express their
>> view, whatever it may be. And so there’s a[…] deference to that. That’s
>> certainly the case here as well. The – if a country tells – tells the GAC
>> or says it has a concern, that not really something that – that’s
>> evaluated, in the sense you mean, by the other governments. That’s not the
>> way governments work with each other.”
>>
>> Honorable Judge Cahill:
>> So you don’t go into the reasons at all with them?
>>
>> The Witness:
>> To the issue of consensus objection, no.
>>
>> But the Panel was unimpressed with such a sloppy decision making process,
>> particularly given ICANN’s duty to act the public interest and to obey its
>> own Bylaws. According to the Panel:
>>
>> “ICANN was bound by its Bylaws to conduct adequate diligence to ensure
>> that it was applying its procedures fairly. Section 1 of Article III of
>> ICANN’s Bylaws, require it and its constituent bodies to “operate to the
>> maximum extent feasible in an open and transparent manner and consistent
>> with procedures designed to ensure fairness. The Board must also as per
>> Article IV, Section 3, Paragraph 4 exercise due diligence and care in
>> having a reasonable amount of facts in front of it.”
>>
>> Thus ICANN Board was legally required to conduct a meaningful review of
>> its previous decision to accept the GAC objection advice and it did not.
>> The Panel declared, “[I]n light of the clear ‘Transparency’ obligation
>> provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN
>> Board to, at a minimum, investigate the matter further before rejecting DCA
>> Trust’s application.” The Panel said it would have had a similar
>> expectation with respect to the Board’s response to the GAC consensus
>> objection.
>>
>> Instead of investigating the conflict or providing a meaningful
>> reconsideration of its prior decision, the Board simply accepted the GAC
>> objection as if it were definitive on the matter, rather than an input to
>> consider. The law does not allow ICANN’s Board to abdicate its
>> responsibility to govern ICANN to the GAC; nor may it violate its Bylaws’
>> obligations to conduct ICANN’s affairs with fairness and transparency,
>> simply because GAC desires a specific policy objective.
>>
>> ICANN’s claim that “the Guidebook explicitly states that Early Warnings
>> may be issued for any reason” did not hold much sway with the Panel, which
>> declared that ICANN must follow rules, notably its Bylaws and Articles,
>> which require transparency and fairness in the administration of its duties.
>>
>> At the 16 July special Board meeting, ICANN’s Board stated it would ask
>> the GAC if it wishes to refine its consensus advice to object to DCA
>> Trust’s application, provide further information regarding that advice, or
>> otherwise address the concerns raised in the Panel’s declaration regarding
>> GAC. The continued development and impact of GAC advice on ICANN’s
>> decision-making process is particularly worth watching going forward.
>>
>> ICANN Staff’s Various Attempts to Impede IRP Accountability
>>
>> The Panel noted a number of times throughout the lengthy IRP process when
>> ICANN staff attempted to reduce the ability of the Panel to provide
>> meaningful accountability.  Just as ICANN’s Cross Community Working Group
>> on Accountability begins to examine “ICANN staff accountability” in the
>> overall accountability framework of the organization, the Panel’s
>> declaration is all too illuminating on the significant hurdles one must
>> traverse when trying to hold ICANN accountable for its actions.  At every
>> turn, ICANN staff, particularly its lawyers, attempted to erect barriers in
>> the process that would insulate the organization from responsibility and
>> render the IRP impotent.
>>
>> “The Panel is also of the view that any attempt by ICANN in this case to
>> prevent it from carrying out its independent review of ICANN’s Board’s
>> actions in the manner that the Panel considers appropriate under the
>> circumstances deprives the accountability and review process set out in the
>> Bylaws of any meaning.”
>>
>> Some examples that came out during the proceedings:
>>
>> ICANN claimed the Panel could not examine witnesses. The Panel decided
>> otherwise and noted that both ICANN’s Bylaws and the Supplementary Rules
>> require an IRP Panel to examine and decide whether the board has acted
>> consistently with it obligations. Without the ability to examine witnesses
>> and test the veracity of their claims, the Panel would be unable to ensure
>> that the parties to an IRP are treated with equity and given a fair
>> opportunity to present their case.
>>
>> ICANN claimed the Panel could not suggest a remedy if violations were
>> found. The Panel disagreed with ICANN’s claim because if the IRP mechanism
>> is intended to provide a remedy for a claimant materially injured or harmed
>> by Board action or inaction, then naturally the IRP Panel may recommend how
>> the ICANN Board might fashion a remedy to redress such injury or harm.
>>
>> ICANN claimed the Panel’s standard of review was to be “deferential” to
>> the board of directors, rather than a de novo standard, which is an
>> objective and independent one, examining whether the Board acted or failed
>> to act in a manner inconsistent with ICANN’s Articles or Bylaws. The Panel
>> declared that the IRP was specifically designed and set up to offer the
>> Internet community, a de novo standard of review that would ensure that
>> ICANN acted in a manner consistent with its Articles and Bylaws.
>>
>> ICANN claimed that an IRP was not permitted to address whether the GAC
>> did anything inappropriate and could only consider Board actions or
>> inactions. The Panel, however, noted that GAC was clearly a constituent
>> body of ICANN and was therefore required to act transparently and in a
>> neutral and objective manner and that it was empowered to examine that
>> conduct.
>>
>> Astonishingly, before publishing the Panel’s declaration, ICANN redacted
>> key text from the declaration in at least 39 separate places to further
>> hide its misdeeds. According to sources who have seen the un-redacted
>> ruling, the deleted text primarily discusses specific instances of ICANN
>> staff misconduct including ICANN’s senior management’s drafting of the
>> letter which it then relied upon to provide the winning bid for .AFRICA to
>> DCA Trust’s competitor. There appear to be redactions also of the GAC
>> former chair’s testimony explaining how “the political process” at ICANN
>> works.
>>
>> Clearly it is inappropriate for ICANN to abuse its position in the
>> publication of the IRP declaration to censor instances of ICANN staff
>> misconduct and GAC unaccountability from public view. As the redacted
>> declaration is already significantly damning with respect to revealing
>> ICANN accountability failures, it begs the question as to just how much
>> more unflattering the redacted text must be. Even after ICANN was severely
>> rebuked by the Panel in its ruling for its many instances of inappropriate
>> conduct in this matter, ICANN continued with its usual practice of hiding
>> the extent of its misconduct from the public it allegedly serves. A new
>> culture of transparency in every aspect of key decisions must take root at
>> ICANN before the organization can be given any greater responsibility to
>> serve the public, rather than not itself.
>>
>> The Panel stated that, “ICANN is not an ordinary California nonprofit
>> organization. Rather it has a large international purpose and
>> responsibility to coordinate and ensure the stable and secure operation of
>> the Internet’s unique identifier systems.”
>>
>> Important Precedent Over-Turning “Presumption” that GAC Advice Must be
>> Obeyed
>>
>> This ruling is significant in many respects, including demonstrating the
>> absolute necessity of having an IRP that is truly independent of ICANN’s
>> Board and staff. Managing the Internet’s domain name system requires a
>> level of competence and trustworthiness to the public interest that ICANN
>> has not yet shown itself mature enough to undertake without an independent
>> adjudicator of ICANN’s actions.
>>
>> This ruling could also have important precedential value for the many
>> other new gTLDs, which have also been negatively impacted by GAC advice or
>> objections that may not comport with ICANN’s legal obligations to follow
>> rules in a fair, transparent, and objective manner after conducting due
>> diligence.
>>
>> The “presumption” that GAC consensus objections to new domains shall be
>> obeyed by ICANN’s Board has been solidly overturned by the Panel since
>> neither the Board, nor the GAC itself have required the GAC to follow rules
>> or process, to operate fairly, or even state reasons to objections that can
>> be addressed.
>>
>> Furthermore, the Board may not abdicate its responsibility and hide
>> behind GAC decisions without undertaking its own independent inquiry and
>> exercising its own judgment as to whether proper process and appropriate
>> decisions were taken. The light shown on the non-transparent and lawless
>> nature of ICANN’s GAC calls the actions and structure of the entire
>> organization into question.
>>
>> ICANN cannot promise the world transparency, fairness, due diligence, and
>> objectivity in its exercise of these important responsibilities at the same
>> time that it does not require those qualities of its constituent bodies,
>> including GAC, the Board, and ICANN’s staff.
>> Another important consideration from this ruling is the tremendous cost
>> and time that one must invest to try to hold ICANN accountable. DCA Trust
>> could have easily spent a million dollars to bring this action to
>> completion in lawyers’ fees, panelists’ fees, and other expenses. New gTLD
>> applicants are required to waive all their rights to legal enforcement by
>> courts of law, so the IRP is the only independent mechanism available to
>> those harmed by ICANN, and one must be prepared to spend millions of U.S.
>> Dollars in order to have their rights enforced. Not exactly a mechanism
>> that is accessible for 99% of the world’s population, despite ICANN’s
>> global impact and claim of public service. In any event, the .AFRICA is
>> among the most important and precedential IRP declarations ICANN has ever
>> received.
>>
>> ICANN Staff Redactions:
>>
>> By Robin Gross|July 16th, 2015|Internet Governance, Publications
>>
>