[IOT] Discussion thread #1

[avri doria]

Hi,

By this reasoning does that mean a future IRP for something that is
happening today would be ineligible for the new procedures?

thanks

avri


On 23-Aug-16 17:25, McAuley, David wrote:
>
> 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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