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

Burr, Becky Becky.Burr at neustar.biz
Wed Apr 8 14:50:31 UTC 2015

Malcolm, I don¹t completely agree that the ³inadequate remedy² prong of
this analysis is irrelevant.  It is true in the ordinary setting we are
talking about an inadequate remedy ³at law² - and (in the US at least)
that usually means money damages won¹t resolve.  But putting money damages
aside, I don¹t know why an individual/entity seeking prospective
injunctive relief should not be called upon to demonstrate that an action
of the board/staff cannot be rolled back effectively, and any harm

I agree that the test formulated is not simply a ³standing² test - the
test for standing is ³materially affected.²  The test in the chart relates
to when a court will entertain a request for prospective relief from
someone with standing (that is to say has been or will be materially
affected, et.c)

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 / www.neustar.biz

On 4/8/15, 7:31 AM, "Malcolm Hutty" <malcolm at linx.net> wrote:

>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
>   Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange |
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