[IOT] Discussion thread #2

[Malcolm Hutty]

On 22/08/2016 22:13, Burr, Becky wrote:
>
> The draft Updated Supplementary Rules just circulated contains the
> following:
>
>     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 or, where a CLAIMANT demonstrates to the satisfaction of the
>     Panel that it was not aware of the action or inaction prior to the
>     end of that 45 day period, no more than [X] months from the date of
>     such action or inaction.
>
>
>
>  The CCWG’s Final Report does not contemplate a “constructive knowledge”
> standard, so it has been removed.

Becky,

Is this intended as responsive to the issue I raised in the thread "Time 
Bar", or as a separate issue?

If it is intended to address that problem, I'm afraid I don't believe 
this deletion resolves the issue. It would remain entirely possible that 
the Claimant was aware of the *action* giving rise to the dispute 
immediately, but was not affected by the action until much later.

A Claimant who becomes affected by an action should be able to challenge 
that action, provided they do so reasonably promptly on being affected 
by it, regardless of how much time has passed since the action.

For example, a Registrant should be able to challenge a policy that 
purported to regulate the content they could publish on servers they 
operate with an allegation that the policy is ultra vires. The clock on 
time-barring their Dispute ought not to start until they are threatened 
with enforcement action under the policy.

Malcolm.

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