I have received a number of complaints about the results received from the dispute resolution providers in the new gTLD applications. I have received some careful and full submissions in relation to inconsistencies across the decisions which have been made, and have been invited to consider that the inconsistencies have made the decision making unfair. It is important to emphasise that as the ombudsman I have no jurisdiction to act in any way as an appeal from the dispute resolution providers. My jurisdiction is within the ICANN community which is a very specific group. And as the ombudsman, my jurisdiction is limited to finding issues of unfairness and delay, followed by a recommendation to the board where appropriate.
The dispute resolution providers have a relationship with ICANN that is created by a number of different methods but generally a memorandum of understanding. This is important in the context of my jurisdiction between ICANN, the ICANN community and supporting bodies. If an organisation such as a dispute resolution provider has a relationship with ICANN, it would stretch the meaning to say that they were a supporting body. That term has generally been interpreted to mean the SOs and ACs. But my bylaw also talks about the ICANN community, which is a broader definition, with the limits more difficult to define.
In October last year I filed a post about some of these issues. Since then I have had further discussions with some of the dispute resolution providers, which has enabled me to clarify my thinking on where I can review these issues. The providers with whom I discussed this matter, have assured me that they have robust internal review procedures to ensure that the tribunals achieve some level of consistency and quality. In addition, there are sessions where panel members can undertake a peer-review process, by meeting and a collective discussion about the decisions.
The real problem as it seems to me, is that apart from the internal review procedures, there is no ability to seek an appeal from the panel decisions. A number of complainants had mentioned the need for an appeal process, emphasising that some of the decisions were in their view, inconsistent or not following the majority views. For that reason the complainants have opted to invoke the ICANN reconsideration process, and following this process, have then come to the ombudsman for a review.
I am interested in getting comment from the community about these issues. I have had a number of comments already from complainants, and I have discussed this with some dispute resolution providers. Other comments would also be useful. I look forward to comments which can either be sent by email to me at ombudsman@ICANN.org or posted to this blog.