[CCWG-ACCT] Questions regarding access to IRP when harm is prospective
Becky.Burr at neustar.biz
Tue Apr 7 23:00:51 UTC 2015
Earlier today Rafael Perez Galindo wrote:
we deem it essential that the standing scope encompasses not only materially affected persons or entities, but also potentially affected ones. The rationale behind this proposal is that there are instances in which the harm is only done AFTER a decision that violates the Bylaws or Articles of Incorporation is made. A typical example would be the decision to delegate a new gTLD that has a high likelihood of harming determined interests or rights or users. In this case, the potentially harmed communities should be in a position to file an IRP BEFORE the harm is done, thus avoiding the commission of the violation. Hence, sometimes it makes no sense to wait till irreversible damage is caused, and a provision envisaging this situation should be put in place, expanding the scope of legitimacy to file an IRP to situations in which it is demonstrated that a severe harm can potentially be done.
I responded as follows:
As to “potentially affected” parties, I think we are really talking about “prospectively affected” parties. In other words, if the Board takes an action, the party in question will be materially or significantly and adversely affected. In that case, a prospectively affected party would have standing to seek relief prior to an action or decision to the extent the prospective harm is ‘material’ or ‘significant’ and the normal standard for pre-emptive or injunctive relief is met. This would require a showing on the part of the prospectively affected party that they are likely to win an IRP on the merits and that there is no adequate remedy once an action or decision has been taken. Putting aside the merits of any particular case, I believe that this approach has been adopted in at least one ongoing IRP.
The chart below reflects my quick research regarding how this issue is handled in different (English speaking) jurisdictions, and how it has been applied in the international arbitration context in an ICANN IRP. (It would be great if Thomas and Leon could provide information on how this applies in civil law jurisdictions.) Our task is to decide (a) whether we agree that this kind of prospective harm should be covered, and if so, what standard should be applied. Please let me know your thoughts.
Three-part test for granting an injunction in R.J.R Macdonald Inc. v. Canada (Attorney General),  1 S.C.R. 311.
(1) Is there a serious issue to be tried? Some cases apply a low standard (case is neither vexatious or frivolous) and others apply a high standard (moving party to demonstrate that it has a strong prima facie case).
(2) Will the applicant suffer irreparable harm – i.e., harm that cannot be quantified in monetary terms or that cannot be cured - if the injunction is not granted?
(3) Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits (“balance of convenience”)? Are there other factors to be considered, e.g., “clean hands”?
Under Australian Broadcasting Corp v O'Neill (2006) 227 CLR 57, an interlocutory injunction will be granted where it is shown that:
(1) There is a serious question to be tried in that there is a sufficient likelihood of success so as to justify in the circumstances the preservation of the status quo pending the trial;
(2) The balance of convenience favours granting the injunction (that is, the inconvenience or injury the IPR holder would likely suffer if the injunction were refused outweighs the injury the alleged infringer would suffer if the injunction were granted); and
(3) The plaintiff is likely to suffer injury for which damages will not be an adequate remedy having regard to the nature and circumstances of the case.
Under the Federal Rules of Civil Procedure, as explained in Johnson v. Burge, 506 Fed. Appx. 10, 11 (2d Cir. 2012), a party seeking injunctive relief must show:
(1) Irreparable harm;
(2) Either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits; and
(3) A balance of hardships tipping decidedly toward the party seeking the injunctive relief.
International Commercial Arbitration (ICDR)
Article 21 of the ICDR Rules grants broad powers to the Panel and the Emergency Arbitrator to “take whatever interim measures it deems necessary.” In order to demonstrate entitlement to interim relief on an emergency basis, a party must indicate the relief requested, explain why it is entitled to the requested interim relief, and demonstrate why the relief is required on an emergency basis.
As applied in DCA Trust v. ICANN, interim relief may be granted if the claimants demonstrates
(1) There is an urgent need for relief to protect an existing right
(2) The relief requested is proportionate to the harm that would occur in the absence of interim relief; and
(3) The claimant has a reasonable possibility of succeeding on the merits.
(from another source "… most of the Rules do not provide any guidance other than that the decision maker “may” grant interim relief where the decision maker deems it “necessary” or “appropriate.” Some commentators have criticized this lack of specificity, arguing that defined standards will help overcome arbitrators’ traditional reluctance to grant requests for interim relief. Consequently, one commentator has argued that an applicant should be required to demonstrate that it is “possible” (not “probable”) that it will prevail on the merits and that it will suffer irreparable harm if the relief is not granted. This is the approach that UNCITRAL has adopted. Others have argued that these standards, although vague, necessarily incorporate other requirements, such as irreparable harm, urgency, and some consideration of the strength of the parties’ claims and defenses.”)
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz
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