[IOT] Discussion thread #1

[McAuley, David]

Hi Becky,

I think Avri and the others who urge this point have a decent and understandable inclination, especially given the old IRP's limitation to procedural rather than substantive review.

But I wonder if we can/should take such an approach.

First, while I don't necessarily see retroactivity as explicitly beyond the CCWG's remit, it seems retroactivity might either be mandated by or contrary to the new bylaws.  Here's what I mean:

Bylaw Section 4.3(a) (speaking to what the new IRP is intended to do) is in the present tense and appears to have an exclusively prospective effect, at least in my reading. The same is true for the definition of "Covered Actions" in Section 4.3(b)(ii) ("...actions or failures to act ... that give rise to a Dispute.") (my emphasis).  I think there is a fair argument here that the Bylaws preclude looking back to pre-existing claims.  On the other hand, it could be that California law would require even such a prospective bylaw to have present application and thus application to presently pending matters.

Given this, we might want to ask Rosemary about this.

Also, I think there is an issue of fairness involved in going back and changing substantive rules retroactively. Strictly procedural rules applied prospectively from the date of their taking effect are another matter.

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

From: iot-bounces at icann.org [mailto:iot-bounces at icann.org] On Behalf Of Burr, Becky
Sent: Monday, August 22, 2016 4:37 PM
To: iot at icann.org
Subject: [IOT] Discussion thread #1




The current draft states:

IRPs commenced prior to the adoption of these Updated Supplementary Procedures shall be governed by the Supplementary Procedures in effect at the time such IRPs were commenced.

In other words, if you filed an IRP before these new rules get adopted on October 1, you continue to operate under the existing supplementary rules and note the updated supplementary rules.  Several people have expressed disagreement with that principle, and Avri has suggested adding language along the lines below (I have tweaked it slightly):

[unless the IRP Panel determines that the party requesting application of the Updated Supplementary has demonstrated that application of the former Supplementary Procedures would be unjust and impracticable to the requesting party and application of the Updated Supplementary Rules would not materially disadvantage any other party's substantive rights.  Any party to a then-pending IRP may oppose the request for application of the Updated Supplementary Procedures.  Requests to apply the Updated Supplementary Procedures will be resolved by the IRP PANEL in its discretion]

This is a difficult and important issue.  Most importantly, we need to understand and address the impact that this change would have on IRPs that are ongoing as of October 1 2016.  Would a claimant be entitled to essentially re-start the process to take advantage of a changed page limitation or the updated standard of review, even if a hearing has taken place and the only remaining step is for the Panel to issue a declaration?  What about those who are close to the end of the process and want to go back and move to have an in person hearing?  Could this be limited in some way? ICANN thinks that needs to be a bright line between IRPs filed under the old Bylaws/old procedures, and the IRPs filed under the new Bylaws/new procedures.

Also, since this is retroactive and would impact IRPs filed under the old rules, query whether this is within the scope of our remit.







J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
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