[IOT] Discussion thread #1

Wed Aug 24 14:12:53 UTC 2016

No, I think it would mean that the procedures in effect on the day you
file would apply

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>

On 8/23/16, 11:50 PM, "avri doria" <avri at acm.org> wrote:

>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 IRP¹s limitation
>> to procedural rather than substantive review.
>>
>>  
>>
>> But I wonder if we can/should take such an approach.
>>
>>  
>>
>> First, while I don¹t necessarily see retroactivity as explicitly
>> beyond the CCWG¹s remit, it seems retroactivity might either be
>> mandated by or contrary to the new bylaws.  Here¹s 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
>> ³Covered Actions² in Section 4.3(b)(ii) (³Šactions or failures to act
>> Š that _give_ rise to a Dispute.²) (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 party¹s 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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