[IOT] Time Bar

[Malcolm Hutty]

The latest draft Updated Supplemental Procedures states

"A CLAIMANT shall file a written statement of a DISPUTE with the ICDR no 
more than [45] days after a CLAIMANT becomes aware or reasonably should 
have been aware of the action or inaction giving rise to the DISPUTE."
          -- [excerpt from parapgraph 4]

Annex 7 to the CCWG Final Report promised

"Standing

Any person/group/entity “materially affected” by an ICANN action or 
inaction in violation of ICANN’s Articles of Incorporation and/or Bylaws 
shall have the right to file a complaint under the IRP and seek redress. 
They must do so within [number of days to be determined by the IRP 
Subgroup] days of becoming aware of the alleged violation and how it 
allegedly affects them.  [...]"

Note the discrepancy between the two. In the Supplemental Procedures the 
clock starts as soon as the Claimant becomes aware of the action giving 
rise to the dispute; in the CCWG report, the clock only starts when two 
things have happened
i) the Claimant becomes aware of the alleged violation; and
ii) the Claimant becomes aware of how the alleged violation affects them.

This latter provides an important protection. It is entirely possible 
that the Claimant may be aware of the violation but unaware that it 
might affect *them*. In particular, the Claimant might be aware of the 
action at the time it took place, but there may be no reason to suppose 
that they would be affected by it until much later.

For example, suppose that ICANN adopts a particular policy. Suppose that 
Claimant "C" believes that that policy violates the bylaws (it might, 
for example, be ultra vires the Mission, or it might single out a class 
of person for unfair discriminatory treatment). However, on the facts 
that pertain at that time, C might not be affected by the policy, and 
have no reason to think they ever will be. In such circumstances, C 
would have no standing to challenge it. Much later (more than 45 days), 
C's circumstances may have changed such that C now falls within the 
scope of the policy. Indeed, let us assume that C's interests are now 
very directly and substantially threatened by it. If C promptly seeks to 
challenge the legitimacy of the policy as soon as the become aware that 
they are likely to be harmed by it, do they have a right to do so, or 
are they time-barred?

Under the wording of the Supplemental Procedures, if 45 days have passed 
since C became aware of the adoption of the policy, it seems to me that 
C will be time-barred, even if they lacked standing during those 45 
days. Only the adoption of the policy could be the "action giving rise 
to the dispute"; the changes in C's circumstances that brought them 
within the scope of the policy might be none of ICANN's doing.

According to the CCWG Final Report, once C becomes subject to the policy 
they should have the right to challenge it, provided they do so within 
45 days of becoming aware that it (a) exists and (b) affects them.

To correct this discrepancy, I suggest the following replacement 
language for your consideration:

A CLAIMANT shall file a written statement of a DISPUTE with the ICDR no 
more than [45] days after the later of
i) the date that CLAIMANT becomes aware or reasonably should have been 
aware of the action or inaction giving rise to the DISPUTE; and
ii) the date that CLAIMANT becomes aware or reasonably should have been 
aware that it has suffered an injury or harm that is directly and 
causally connected to the alleged violation giving rise to the DISPUTE


Kind Regards,

Malcolm Hutty

-- 
             Malcolm Hutty | tel: +44 20 7645 3523
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