[CCWG-ACCT] Notes-Recordings-Transcript links for STRESS TESTS Meeting #5 - 29 April
malcolm at linx.net
Wed Apr 29 17:43:39 UTC 2015
On 29/04/2015 17:33, Jacob Malthouse wrote:
> Dear all,
> Re: RfR and IRP stress test: 'frivolous' and 'abusive' are a very high bar.
> Most panelists would lean towards hearing a case if this is the threshold.
Isn't that a good thing? Shouldn't someone with a reasonable complaint
at least have the opportunity to be heard to make their claim?
This doesn't mean that they will necessarily be successful in
overturning ICANN's decision, that will depend on the merits of their
case. If ICANN has acted properly, their complaint will have no effect.
> Therefore these words will not be effective in deterring dilatory
Actually "these words" are not the only restraint on dilatory tactics,
they are part of a broader package of hurdles for complainaints:
1. While the complaint is being considered, in the usual case the
ordinary process will proceed: that is, the mere fact of a complaint
being made in IRP doesn't stop ICANN pressing ahead in its belief that
the complaint will be unsuccessful. There is a provision for interim
relief, but there are very strict further tests that need to be met
before interim relief a complainant could even apply for a pause.
2. There is also a preliminary conciliation process, to further weed out
complaints that can be addressed without adjudication. We have heard
from previous IRP users that ICANN is the "guilty party" for using this
particular provision as a dilatory tactic, dragging out a futile
conciliation procedure that complainants dare not escape for fear of
being told they have not exhausted their options for conciliation.
3. The IRP complaint is limited to 25 double-spaced pages, which acts to
limit undue complexity in the complaints being brought, and helps to
ensure they can be dealt with expeditiously.
4. Most significantly, initiation of a complaint is subject to a very
tight deadline (far too tight, in my opinion). Many complaints will be
time-barred simply because the complainant didn't realise that they
would be harmed by a wrongful decision by ICANN before the thirty day
deadline has expired. In our discussions we identified this as a problem
likely to lead to unfairness, but as far as I can see, the draft
proposal does not capture the suggestions raised for rectifying this.
5. Also quite significantly, in my view, the complainant must bear their
own legal/advocacy costs for bringing their complaint. Those that have
brought an IRP case before will tell you, these costs can be very
significant - think six figures. We did discuss in Istanbul making
provision so that impecunious complainants could have their costs
supported by ICANN, but so far we have made no such provision - although
we have clarified that ICANN should bear the costs of the IRP panelists.
6. Finally, by using the IRP the complainant agrees to be bound by it
and surrenders their right to appeal to the ordinary courts (except in
very limited circumstances). So the IRP would act as a means of removing
opportunities for delay.
Given all these safeguards and impediments to complainants, I can't see
any justification for erecting any further barriers to complaints being
heard that are neither frivolous nor vexatious.
> Also, there are very few existing precedents. Until the pool of cases is
> large enough there will be many more cases.
We discussed in Istanbul the possibility that there would be more cases
initially, and a declining stream as a body of precedent was gradually
established, and I believe there was a consensus that this was desirable.
My fear is that the cost and time-bar hurdles (acting separately and in
conjunction with each other) will too heavily dissuade people from
bringing IRP claims that ought to be brought, that we would all benefit
from being brought, and this will retard the development of a body of
> Suggest a larger number of panelists at the start, to decrease as the
> number of cases becomes less due to increased precedent.
I think that is sensible suggestion, but isn't this level of detail as
to the appropriate size of the pool at any given time best left to ICANN
to decide operationally?
Malcolm Hutty | tel: +44 20 7645 3523
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