[IOT] Discussion thread #2
Malcolm Hutty
malcolm at linx.net
Fri Aug 26 10:08:54 UTC 2016
On 23/08/2016 17:06, Burr, Becky wrote:
> We have to have a standard that provides a reasonable opportunity for
> redress without totally paralyzing ICANN and/or materially harming other
> affected parties.
You've got some fairly sweeping and unsubstantiated assumptions bound up
in that sentence. I'll just note that I don't agree that we have to
adopt the most restrictive possibly time-bar rules in all cases to avoid
such catastrophic consequences.
> The CCWG Final Report states that they must file
> within a specified period [TBD – we propose 45 days] after becoming
> “aware of the alleged violation and how it allegedly affects them.” I
> do not think that the latter phrase can possibly be read to allow
> someone who is fully aware of an ICANN action to file an IRP complaint 2
> years after the action because they have belatedly become aware that it
> might prevent them from doing something they want to do.
I wasn't suggesting that a delay should be permitted merely because they
hadn't properly analysed the effect of information before them. I have
little sympathy for a gTLD applicant who says "we didn't realise that
this provision of the guidebook would bar our application" (although, of
course, a complaint alleging ICANN's misapplication of the guidebook
rule is another matter).
I think your concern is best addressed by adopting an objective test of
when the Claimant "became aware", that includes when "they ought
reasonably to have become aware" that they were affected.
This would allow the Panel reasonable (but not undue) flexibility to
declare that certain types of dispute ought to be brought within 90 days
of ICANN's action (because the Claimant ought reasonably to have been
aware of it), while for others the clock starts later.
In particular, it allows the Panel to start the clock later when the
Claimant *could not possibly* have brought the action earlier. This is,
I think, essential if we are to honour either the CCWG Final Report, or
the Bylaws themselves (which state repeatedly that the IRP is intended
to be a fair process).
The suggestion
> of 24 months strikes me as way too long, particularly where IRPs often
> involve disputes that affect the rights of others (e.g., disputes about
> which of two contesting applicants should be allowed to operate a
> particular new gTLD). In that case, the 45 day limitation should apply,
> and the losing applicant shouldn’t have a case 2 years later because
> they just learned of a new way in which they are affected.
I agree with the above, as it applies to the scenario Becky describes.
> On Malcolm’s case regarding a policy purporting to regulate content, I
> think the situation is a little bit different. Any policy that actually
> regulates content on its face is going to be ultra vires, and I think we
> can expect either a community challenge or an affected registrant to
> come forward rather quickly to challenge that policy.
Your hope for a "quick community challenge" isn't relevant to what the
rules should be. Personally, I disagree; I am very pessimistic about the
prospects for collective accountability action, and believe that by far
the most important part of the CCWG reforms was the possibility of
individual IRP challenge. But it doesn't matter which of us turns out to
be correct: the CCWG Report and the Bylaws promise that both individual
and collective redress are available, as complementary mechanisms.
We must therefore suppose that, for whatever reason, the community has
failed to bring a challenge, and ask ourselves, when do withdraw the
opportunity for a Claimant to argue that the rule that affects them is
contrary to the Bylaws?
I believe the answer to this must surely be "within a defined period [X
days] of when they were affected by it, and knew (or ought reasonably to
have known) that this was so".
This maintains consistency between the rules of standing and the rules
of time barring. To set the time-bar rules over and above the standing
rules would be to open up a loophole whereby a Claimant may never be
eligible to bring a Dispute, because they did not have standing during
the period when challenge was permitted, and only acquired standing when
they were already time-barred.
That cannot be right or fair, and I believe it would be inconsistent
with our mandate.
However, if you disagree, I think you must say so. I don't think you can
simply prefer a formulation that would have that effect without
acknowledging it.
--
Malcolm Hutty | tel: +44 20 7645 3523
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