[CCWG-ACCT] Questions regarding access to IRP when harm is prospective

Malcolm Hutty malcolm at linx.net
Wed Apr 8 11:31:28 UTC 2015

On 08/04/2015 00:00, Burr, Becky wrote:
> The chart below reflects my quick research regarding how this issue is
> handled in different (English speaking) 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.

As to prospective harm, I agree that it should be covered.

As to the standard, I have a comment on the chart: it reflects that some
jurisdictions regard injunctive relief as particularly intrusive, and so
only available where the harm could not be compensated adequately with
monetary damages.

In the case of the IRP, as far as I know nobody is proposing that it be
empowered to award monetary damages against ICANN, so the "irreparable
harm" standard wouldn't be appropriate as a threshold.

In ICANN's case, I'm not sure we need be so fixated on 'harm' at all: we
should be keen to ensure ICANN can be restrained from activity in breach
of its bylaws or outside its mission. I would favour a liberal approach
to standing and that instead we ensure that the IRP can swiftly and
efficiently dispose of frivolous complaints or those with no reasponable
prospect of success, without causing disruption to ordinary affairs.

So as to standing, let me suggest

"any party who has been materially affected by a decision or action by
ICANN, or who will be materially affected if an imminent decision or
action is made".

However some of the tests in the chart you copy speak to that "swift and
efficient disposal" I mentioned: things like, is there a serious issue,
is there a reasonable prospect of success on the merits? To my mind
that's not so much "who" should have the right to complain, but whether
a complaint should be struck out early. It's important to provide for
this too, rather than relying on standing alone.

Here I would suggest providing for early strike out if

i) the complaint has no reasonable prospect of success on the merits;
ii) the correction of a failure to follow process would not materially
affect the outcome;
iii) intervention by the IRP would be premature

The last would cover, for example a complaint that a step in a process
wasn't followed (e.g. failure to consider a material fact) but that the
process could correct itself later (e.g. by considering that fact at a
later stage).

Any other suggestions?

            Malcolm Hutty | tel: +44 20 7645 3523
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