Draft Letter to ICANN Board & CEO

[Cedric Laurant]

Hi Mary,

Great letter.

I think a firmer, yet diplomatic, tone is needed 
a bit more throughout the letter.  As I read it, 
the letter seems like a pleading to the Board 
that they, please, review what staff has done. 
Instead, I think a slightly more convincing 
letter would systematically contrast the 
critiques made about the decision-making process 
at ICANN with what existing procedure rules 
require ICANN to do and the methods to follow, in 
order to point to the likelihood of violation of 
some of those rules.  (Unfortunately, I am not 
knowledgeable enough about what those rules are).

I would also compare the top-down approach the 
ICANN staff used in this case with the bottom-up 
approach prevailing at other international or 
supranational organizations.

The link at footnote 7 does not work: 
http://forum.icann.org/lists/sg-petitions-charters/pdfj95Wzn7olQ.pdf.

Cedric
---
>Hi,
>
>I am not sure US laws cares about administrative 
>justice.  Would be interesting to know.  But one 
>can certainly demand that ICANN live up to such 
>conditions of fairness.
>
>Might be a good position to take in a possible Ombudsman appeal.
>
>BTW: also need to add in the fact that the 2 SGs 
>in the contracted parties house were ultimately 
>allowed to have a charter that did not include 
>Constituencies.   As far as I can tell there 
>have not been any explanations, either cogent or 
>otherwise, of why they were allowed but NCSG 
>wasn't.  Perhaps this fits into the argument 
>about the NCSG proposed charter having never 
>really been considered because it was superseded 
>by the Policy Staff created charter.
>
>Note: i was never in favor of constituency-less 
>SG charters, but that is what NCUC bottom up 
>process originally decided on, and as I 
>understand only changed when it became clear 
>that it would not be allowed.  At least not for 
>the NCSG.  I apologize for my role in helping to 
>convince NCUC to back down on that (and some 
>other stuff) - but i never envisioned that the 
>Board would allow it - i was wrong.
>
>
>a.
>
>On 11 Aug 2009, at 16:39, Willie Currie wrote:
>
>>With regard to section 2 on specific issues 
>>with the NCSG Charter adopted by the Board, 
>>isn't there a body of US adminstrative law we 
>>can draw on to attack the decision on the 
>>grounds of administrative injustice, as it 
>>appears that the process adopted by ICANN in 
>>its decision-making on the charters has been 
>>based on:
>>
>>- the misperceptions circulated about the NCUC 
>>by the ALAC chair and others (p9)
>>- the timing of the late release of the 
>>SIC/Staff Charter and the process surrounding 
>>its tabling to the Board (p7)
>>- the failure of the Board to discuss the 
>>NCUC's proposed Charter, implying the failure 
>>of the NCUC's views to be heard by an 
>>administrative body (is there evidence of 
>>this?) (p10)
>>- the filtering of views in the 'Summary & 
>>Analysis' document and the short time it was 
>>provided to the Board before the July 30 
>>Meeting (today's NCUC meeting)
>>
>>In addition, the disparity in treatment between 
>>the Board's treatment of the NCSG and CSG 
>>charters raises issues of administrative 
>>fairness regarding constituencies and the issue 
>>of the ICANN Board being guilty of 
>>discrimination and prejudice (p10).
>>
>>I don't know how administrative justice works 
>>in the USA but these are the kinds of issues in 
>>other jurisdictions which would be used to 
>>overturn a decision of an administrative body 
>>on technical grounds of administrative 
>>fairness, whether through formal processes of 
>>judicial review or alternative dispute 
>>mechanisms, which is often easier to do than 
>>challenging issues on the merits or content of 
>>decisions.


--
Cedric Laurant, Esq.
Researcher, GECTI (Grupo de Estudios en Internet, Comercio Electrónico,
Telecomunicaciones & Informática), Universidad de 
los Andes (http://gecti.uniandes.edu.co/)
Carrera 1 No. 18A-10 - Bogota, D.C. (COLOMBIA)
<cedric at laurant.org> - Skype: cedrichl
http://www.linkedin.com/in/cedriclaurant