Board considers if there’s any sort of appeal mechanism to new TLD objections.
The results of new TLD string confusion objections handled by International Dispute Resolution Centre were a mess. They were completely unpredictable and results were mostly dependent on who the panelist was, not the merits of the case.
As a result, both objectors and applicants have filed reconsideration requests with ICANN’s board. The board governance committee has summarily rejected them.
But that’s likely not the end of the matter. Here’s a discussion at the November 5 board new gTLD committee regarding the matter:
The Committee engaged in a discussion regarding concerns highlighted by the community with the some seemingly inconsistent Expert Determinations from the string similarity objection process, and limitations of the Reconsideration Request process to address the merits of a decision.
Amy Stathos noted that the Board Governance Committee requested staff to prepare an analysis of options that could be utilized to address seeming inconsistences in some of the Expert Determinations from the dispute resolution panel.
Olga Madruga-Forti recommended that Committee address the concerns in steps, focusing initially on the appropriate standard of review for the Committee to consider the Expert Determinations. Olga noted that most appellate tribunals apply very narrow standards of review that are focused primarily on whether the correct process was followed, but highlighted that considering whether process had been followed also requires deciding whether a lower tribunal could have reasonably reached its published outcome following the stated process. Olga inquired whether existing standards could be interpreted to include the concept of reasonableness.
Gonzalo Navarro suggested that the requested analysis consider whether creating a different level of review by the Committee or the BGC might create unfairness to the applicants and the process.
Chris Disspain recommended that the analysis include a discussion of the steps that are available to someone who has lost an objection, and George Sadowsky commented that there should be a method to address the exceptional situations where an Expert Determination deviates far from the norm. George noted that if there is any review process created, it must be carefully circumscribed and limited.
Mike Silber suggested that an administrative quality control step in the review process may be needed before there is a review of an Expert Determination. Mike noted that the Committee has a responsibility to respond to the issue, and discussed the extent to which the Committee should or should not be involved.
Chris and Gonzalo noted that when discussing the issue, the Committee should distinguish between the issue of consistency among the Expert Determinations as distinct from considering Expert Determinations that appear not to have a rational basis.
The Committee discussed its next steps to address the concerns raised. The General Counsel and Secretary suggested that the issue regarding the fairness of Expert Determinations of the string similarity objection dispute resolution service provider be on a different track than recommended changes to the Reconsideration Request process. The General Counsel and Secretary noted that any changes to an accountability mechanism will require expert advice, public comment and community feedback.
The Committee agreed to discuss the matters further at its meeting Buenos Aires. The Chair called the meeting to a close.
Given the wide range of results coming in from community objections now, I suspect this discussion will include these objections, too.
The board’s discussion makes me think the .car wreck could take a while to clear…