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Terri Agnew's Personal Meeting Room - Shared screen with speaker view
Julie Bisland
22:32
Welcome to the New gTLD Subsequent Procedures Working Group call on Thursday 5th December 2019 at 20:00 UTC.
Emily Barabas
23:52
They will go out shortly
Julie Hedlund
24:36
Limited Appeals Mechanism https://docs.google.com/document/d/1pw98QzloHsVaM22VjYy95G-QmHULKbB2gPTSdzQlXhw/edit?usp=sharing
Paul McGrady
35:23
Who can "challenge" the background screening? Only applicants? It really should be both applicants and third parties.
Paul McGrady
35:51
OK Thanks Jeff
Maxim Alzoba
36:32
specially trained challengers :)?
Justine Chew
36:54
I think Kathy is suggested changes in terms used.
Maxim Alzoba
37:03
if it is open to all third parties
Justine Chew
37:05
But I could be wrong
Maxim Alzoba
37:07
we might regret
Jim Prendergast
37:20
its tough to interpret her thoughts so maybe table those sections to next call?
Anne Aikman-Scalese
37:29
In a way it helps because we can distinguish more easily between ICANN determinations and Independent Panel determinations.
Maxim Alzoba
37:37
+1 Jim
Paul McGrady
37:57
+1 Jim. The benefit of renaming everything doesn't jump out at me, but perhaps Kathy sees something here I don't.
Anne Aikman-Scalese
38:39
OOPs - some of the Evaluation Elements are independent panels too I guess.
Paul McGrady
42:11
@Jeff, but the appeal won't be held by the same panelist at the same provider, correct?
Justine Chew
42:29
Just going back, I suspect Kathy wants us to consider making it clear that the recourse against Evaluations is a challenge to evaluation elements while in respect of objections the recourse is an appeal. But yes, best check to with her.
Justine Chew
43:02
*best to check with her
Cheryl Langdon-Orr
44:24
Noted @Justine
Kathy Kleiman
46:19
I'm here now. Agree with Justine.
Justine Chew
48:52
But COI discovered later could also be a grounds of a (post-decision) appeal?
Cheryl Langdon-Orr
50:47
Thanks @Kathy
Anne Aikman-Scalese
52:15
Agree with Evaluation Challenges and Appeals of Objections
Kathy Kleiman
52:52
Not changing anything about the bucket.
Justine Chew
53:12
I don't disagree but I'm not sure if there will be circumstances / exceptions that might break the naming intent
Kathy Kleiman
54:12
Agree with you Paul... still to be developed
Anne Aikman-Scalese
54:18
Don't think this affects "Standing"
Kathy Kleiman
54:30
+1 Anne
Steve Chan
54:51
Link to spreadsheet here: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit?usp=sharing
Anne Aikman-Scalese
55:30
A further question might be the applied standard of review in that "clearly erroneous" may not apply to challenges.
Anne Aikman-Scalese
56:23
Or else "clearly erroneous" might apply to both challenges and appeals but we need to talk more about that standard anyway.
Paul McGrady
58:15
I'm confused by this line. We are using appeal and challenge in the same sentence. Now that we are bucketing things, is this still accurate?
Paul McGrady
59:36
*Clearly erroneous favors ICANN, not applicants. Everyone cool with that? Not sure I am*
Paul McGrady
01:02:54
****Cornel says Clearly Erroneous means: A standard of review in civil appellate proceedings. Under this standard, an appeals court must accept the lower court's findings of fact unless the appellate court is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appellate court may have weighed the evidence and reached a different conclusion; the lower court's decision will only be reversed if it is implausible in light of all the evidence."
Paul McGrady
01:03:06
Seems very high standard indeed.
Paul McGrady
01:03:14
https://www.law.cornell.edu/wex/clearly_erroneous
Paul McGrady
01:04:03
Basically, the underlying decision can be wrong, but so long as it is not "implausible" the appeals panel can't help.
Anne Aikman-Scalese
01:04:11
Suggested further standard for "clearly erroneous" - (a) arbitrary reasoning and/or (b) any element of the evaluation or Objection finding is not supported by substantial evidence.
Paul McGrady
01:04:31
What are the chances of a panelist from the same provider calling his colleague's decision "implausible"?
Paul McGrady
01:05:12
Thought: approaches nil
Kathy Kleiman
01:06:34
It is my understanding that in legitimate arbitration forums there is always a process for handling conflict of interest issues.
Paul McGrady
01:06:50
******Other options are "arbitrary and capricious" and "substantial evidence".
Anne Aikman-Scalese
01:07:23
Paul - I don't think any panelist is going to accuse another panelist of being "capricious.
Alberto Soto
01:08:53
@Kathy, If they exist, but once inside the arbitration ... if it is not resolved, you must accept the arbitrator's decision ..
Paul McGrady
01:09:16
I think we should chart out what the various standards of review actually are. This seems to me like we have just thrown a dart across the room and hit "clearly erroneous"
Maxim Alzoba
01:09:47
bye all, have to drop
Paul McGrady
01:09:47
There are all sorts of variation from no deference to "implausible"
Steve Chan
01:09:51
Link again: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit?usp=sharing
Paul McGrady
01:11:06
Yes, Jeff
Anne Aikman-Scalese
01:13:14
@Paul - I was trying to stick with clearly erroneous because that is what Leadership suggested but I definitely thought we needed more definition to allow the Panelist to have a more objective way to measure the vulnerability of the decision on appeal. Courts applying the "clearly erroneous" focus on (1) reasoning and (2) evidence. I think abuse of discretion is too high a standard to meet. So "clearly erroneous" actually works as long as it is defined a bit more.
Justine Chew
01:13:33
I'm with Paul here. I would even consider adding third parties
Justine Chew
01:14:14
I'm trying to recall an incidence that was raised in the previous round which would support this suggestion
Justine Chew
01:14:51
They'd still need to provide substantive arguments
Justine Chew
01:15:07
Let me find that reference ....
Justine Chew
01:15:22
+1 Paul
Justine Chew
01:16:41
If you refer to the At-Large response to a prior request for clarification for the ALAC's comment with respect to better screening of applicants.
Justine Chew
01:17:05
No, not only third party in a contention set.
Jamie Baxter | dotgay
01:18:15
+1 Paul
Cheryl Langdon-Orr
01:20:22
Smoke over my area is interfering with sat Internet Connection sorry I will keep dropping from Zoom for a while it seems. Landline connection OK
Justine Chew
01:21:47
On Background screening, please refer to my email to WG of 21 Sep 2019, thanks.
Julie Bisland
01:21:49
thank you for the heads up, Cheryl, so sorry for your situation.
Paul McGrady
01:24:29
I think that is right
Paul McGrady
01:28:52
Not even the backend provider?
Justine Chew
01:32:41
@Paul, as in the backend provider being the reason for the evaiuation against the applicant?
Elaine Pruis
01:33:14
clarifying questions helped to clear all BE providers
Justine Chew
01:33:42
@Jeff, correct, I'm with you on DNS Stability.
Justine Chew
01:34:27
So only the Applicant should have standing.
Donna Austin, Chair
01:35:13
If there is a problem during pre-approval of an RSP, wouldn't that likely be resolved before it gets to the application process?
Justine Chew
01:35:28
+1 Donna
Alberto Soto
01:35:32
Sorry, I have another appointment in minutes. Bye
Donna Austin, Chair
01:37:21
As Elaine pointed out clarifying questions helped to clear all BE providers in 2012, by way of responses by the applicant to the technical questions.
Paul McGrady
01:37:28
PS: Are we setting aside the question of Arbiter of Appeal for now?
Anne Aikman-Scalese
01:41:09
I think that the Objections Appeal may not pose the problems that Paul is mentioning because panelists don't work at the Dispute Resolution Providers. They are just on qualified lists of panelists. CPE is likely different and I agree with Paul that Evaluation Challenges could be different.
Donna Austin, Chair
01:41:32
IN 2012, didn't ICANN have some built-in mechanism to address this kind of situation?
Justine Chew
01:42:14
I mentioned somewhere before that selection of provider should include a question on whether the provider has an appeals procedure in place. I am now wondering the need to reconsider implications of that.
Paul McGrady
01:42:22
I just don't think we should rush through Column E. An appeal to someone's buddy down the hall is not a meaningful appeal.
Steve Chan
01:43:15
KPMG, Ernst and Young, and JAS handled Fin and Tech
Jeff Neuman
01:43:41
Sorry E&Y not Deloitte
Donna Austin, Chair
01:44:21
@Steve, thank you. It does seem that there was inbuilt mechanisms for both financial and tech with the provision of three evaluators.
Kathy Kleiman
01:44:52
+1 Anne
Jamie Baxter | dotgay
01:44:59
+1 Anne
Justine Chew
01:45:15
+1 Anne on CPE
Poncelet Ileleji
01:45:23
+1 Anne
Justine Chew
01:45:36
Hence we're proposing appeal process now.
Anne Aikman-Scalese
01:46:00
Maybe get CPE bids and qualify two firms?
Jamie Baxter | dotgay
01:46:34
There were two proposed in the 2012 round, but only one was engaged in the end
Kathy Kleiman
01:46:55
What part of ICANN?
Justine Chew
01:47:29
+1 Kathy, we had suggested community members but then the question of independence was brought up
Anne Aikman-Scalese
01:47:30
ICANN being the arbiter puts ICANN much closer to content regulation since content is at the heart of Community proposed purpose.
Justine Chew
01:49:19
ASP - it wasn't an individiual evaluator, it was a panel
Anne Aikman-Scalese
01:49:22
Support - Evaluation Challenges should be considered by an Alternate Qualified Provider
Steve Chan
01:49:45
FYI, I just added that with a question mark based on today’s conversation
Steve Chan
01:50:02
“That” being RSP Pre-Approval
Poncelet Ileleji
01:50:12
thanks Steve
Paul McGrady
01:50:47
@Staff - please republish the updated chart. Thanks!
Jamie Baxter | dotgay
01:50:51
Skilling up is more fair than asking the evaluator being challenged to acknowledge they made a mistake
Paul McGrady
01:51:26
lightweight, but not weightless :)
Julie Bisland
01:51:34
NEXT CALL: Tuesday, 10 December 2019 at 03:00 UTC for 90 minutes.
Julie Bisland
01:51:44
(Moved from Monday to Tuesday)
Julie Hedlund
01:52:08
Revised invites have been sent
Karen Lentz
01:52:11
Thank you
Anne Aikman-Scalese
01:52:12
Thanks all
Justine Chew
01:52:14
Thanks all