[IOT] Time Bar

[Burr, Becky]

I agree we should stick with the language in the Final Report

-----Original Message-----
From: iot-bounces at icann.org [mailto:iot-bounces at icann.org] On Behalf Of Malcolm Hutty
Sent: Thursday, August 11, 2016 12:21 PM
To: iot at icann.org
Subject: [IOT] Time Bar

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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