The Updated Supplementary Procedures for Independent Review Process ("IRP Supplementary Procedures") are now up for review and Public Comment. Frankly, there is a lot of work to be done. If you have ever been in a String Objection, Community Objection, or negotiated a Consensus Policy, your rights are being limited by the current way the IRP Supplementary Procedures proposal is structured. With timely edits, we can ensure that all directly-impacted and materially-affected parties have actual notice of the IRP proceeding, a right to intervene, a right to be heard on emergency requests, and a right to be part of the discussion of remedies and responses.
History
The IRP is based on commercial arbitration. Arising centuries ago, commercial arbitration was used when two merchants chose to bring their disputes to a wise and trusted private party rather than await the decision of the courts. Arbitration, as we can all recite, is faster and cheaper.
But is it fairer? Currently, the IRP Supplementary Procedures proposal is optimized for the traditional IRP/arbitration scenario: a registration industry member has a dispute with ICANN. The first IRP filer was ICM Registry when Stuart Lawley felt that he had completed all of the requirements for a .XXX and the ICANN Board refused to delegate it to him (under a lot of pressure from the GAC). The ICM Registry wanted the .XXX Registry Agreement with ICANN and through the brilliant representation of Becky Burr and her then-law firm, it won. That's the classic IRP — a one-on-one arbitration between a single party and ICANN.
Problem
But we have decided to use the IRP in different ways — including as the forum for a range of challenges to the decisions of other arbitration forums and to our Multistakeholder Consensus Policies. For these purposes, the IRP is functioning more as an appellate court than an arbitration forum. Yet, we have not updated the IRP Supplementary Procedures to allow all involved parties to participate.
Fair is fair; an IRP proceeding should not be a dance between the disgruntled Claimant and ICANN. It should include all parties to the underlying arbitration (should they choose to participate) and all parties to the underlying Consensus Policy (ditto). ICANN Counsel is brilliant, but they were not directly engaged in the underlying arbitration nor did they (or the ICANN Board) research, negotiate and write the Consensus Policy (the Community did!).
Fundamental rules of due process in all developed country legal systems require that all directly impacted, materially affected parties have a legal right to be heard when there is a challenge to their rights and property. How in good faith, and in our new world of openness and transparency, can we exclude them from the IRP Proceeding?
1. IRPs Need to Include All Parties to a Previous Arbitration Decision — Especially the Winners!!
ICANN's Bylaws expressly throw the IRP doors open to challenge decisions of other arbitration forums. This includes decisions of the World Intellectual Property Organization's Legal Rights Objections, International Chamber of Commerce's Community Objections, and even the International Center for Dispute Resolution (the ICDR which hosts the IRP) also decided String Objections in Round 1 of the New gTLD process. All of these proceedings are legitimate arbitrations in their own right by well-respected International arbitration forums. Yet, when it comes to the IRP, only the challenger (specifically, the losing party) is heard as a matter of right. How can that be?
This must be an oversight in the IRP Supplementary Rules. Clearly, any challenge to another arbitration decision MUST include Actual Notice to All of the Parties to the Underlying Proceeding and the Underlying Provider. That Notice must be provided at the time of filing — not weeks or months later. Further, all parties to the Underlying Decision (especially the winners) must be allowed to participate — as a Matter of Right (not a matter of discretion as is currently the case). Fair is fair and changes to the IRP Supplementary Procedures are needed.
(Quick note that if the Winning Parties choose not to participate fully (a burden that may include financial costs it is unable to undertake), these Parties must be allowed to participate in other ways, such as a "Friend of the IRP" filing that would allow these other Parties to respond to allegations of the Claimant and provide a full and fair overview of the matter for the IRP Panel. Further, any request for Emergency Action or Demand for Interim Measures of Protection must include hearing equally from ALL PARTIES to the proceeding — not just the one party who filed first and yelled "harm" the loudest.)
ICANN Counsel does a valiant job in defending its procedures and arbitration forums, but only the actual Parties know the full details of the arguments being made and the full breadth and depth of the inaccuracies the Claimant is making; they must be in the room.
2. IRPs Must Include the Supporting Organization and Stakeholder Groups who Wrote Any Consensus Policies Being Challenged
The concerns about missing parties magnify when we talk about challenges to Consensus Policy. When a Supporting Organization's Multistakeholder policy is challenged, the Community must be allowed into the arbitration to defend it! ICANN did not write it, we did.
Currently, the rules allow only the Claimant — which could be a single member of the Community disgruntled with a compromise it accepted in the many months or years of negotiation — to challenge the Consensus Policy and enter into a room with ICANN to renegotiate it in private. Nice opportunity if you can get it!
The only problem is that it's not fair or consistent with how Community-led policies are challenged in appellate forums around the world. ICANN, as confirmed by our recent Bylaw changes, is a facilitator. The Community makes the rules for a long process of research, review, negotiation, drafting editing and finalizing the Consensus Policy. It is the Working Group in which Community members participate that has read sometimes thousands of public comments. It is the Community through the Working Group that has presented its report to Council, e.g., the GNSO Council. It is the Council that has presented the Consensus Policy to the ICANN Board.
Fair is fair. The Supporting Organization Council that passed the Consensus Policy must know of the challenge and have an opportunity to participate in the defense; ditto for the Stakeholder Groups of the Supporting Organization that spent so many hundreds of hours of work; we may want to include the Chairs of the Working Group as well. This fair and balanced inclusion would require a few basic changes to the IRP Supplementary Procedures including:
- Actual Notice to the Chair of the Council of the Supporting Organization which passed the Consensus Policy,
- Actual Notice to the Heads of each Stakeholder Group of the Supporting Organization, and
- A Right of These Parties to Intervene and be heard in the IRP challenge to their painstaking work.
Since all of the material is electronic, the notice requirement is easy. The IRP Supplementary Procedure should simply be amended to require that the Claimant send its Request for Independent Review Process, and all attachments including exhibits, witness statements and appendices, to the parties above — with an affidavit to ICANN and the IRP panel that it did so at the time of filing.
The rules should also require that ICANN put the IRP Proceeding on public notice in the Public Comment portion of the ICANN website — where the Multistakeholder Community goes to learn about Consensus Policies being reviewed (it's the logical and easy place to look for challenges to Consensus Policies too). To those who say that ICANN does publish "CEP and IRP Status Updates," I ask: how easy are they to find and how often does the Community, broadly, check them? The Public Comment forum is an easy way to provide a much broader form of notice. Fair is fair.
As above, the Community should have a right to intervene fully, or in a more limited manner writing "Friend of the IRP" Briefs to any and all substantive filings. The Supporting Organization and its Stakeholder Groups (and possible the past Co-Chairs of the original Working Group) must be allowed to shed light on their concerns and the impact of the challenges to the Consensus Policy they have written.
Finally, what remedies should the IRP Panel be allowed? Courts traditionally are allowed to review law and regulation, but not to rewrite them. A whole law or regulation may be struck down, but it may also be found to be only partially in violation of the constitution or law. In that case, the courts send back the law, regulation or policy to be revised and rewritten by the Community through the processes that created it in the first place.
The same fair and balanced "remand" process must be adopted by the IRP Supplementary Procedures. The IRP Panel should identify any problems in the Consensus Policy, but if the rest of the policy still stands, then the IRP Panel must send back the Policy to the ICANN Board for rewrites. Presumably, the ICANN Board will send it back to the Supporting Organization that wrote it for revisions.
In Closing
All aggrieved parties would like to conduct a private dispute with ICANN and no one else in a private IRP. But that's not only unsportsmanlike, it is a violation of the fundamental principles of due process and is inconsistent with the legal systems of all developed countries.
All directly-impacted, materially-affected parties to the challenge of another arbitration forum or of a Consensus policy must be fully and fairly heard in the IRP. They must know the proceeding is taking place, have the right and opportunity to join the proceeding, and have the right to be heard on all major issues alongside ICANN. Fair is fair and due process is due process.
Note: The Updated Supplementary Rules for Independent Review Process are posted on the Open for Public Comment webpage of ICANN with comments due by January 25th. Please join me in advocating for an IRP with openness, transparency, balance, inclusion and fairness.
Written by Kathy Kleiman, Internet Counsel, Co-Lead Internet Law & Policy Team, Fletcher, Heald & Hildreth