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 >> >