[IOT] Discussion thread #2

[McAuley, David]

Becky, Malcolm, Greg, and all:

Thank you for your inputs on this issue. 

I personally think that a limitations period of 45 days makes sense in cases where the claimant knew of the action and understood the harm. That is the easy part.

As for other claims it is hard to settle on a limitation because we are balancing notions of fairness. 

As Malcolm points out, it would be unfair to close the IRP doors to claimants who simply did not sense the harm in time. 

In ICANN’s behalf, it seems unfair to allow claims years following an action where memories have faded, relevant staff may have moved on, and further actions (in reliance on the original, challenged action) may be incapable of unwinding.

My suggestion is to (1) retain the 45 day cap where the claimant knew of the action and harm; (2) eliminate the concept of “should have known” and allow claimants to bring claims when they actually knew of the action AND consequent harm; (3) BUT within an overall time limitation - I see two years have been suggested and don’t quarrel with that. It could even be longer, perhaps.

As for claims years/decades in the future where a claimant might be harmed due to its change in status, I disagree with Malcolm.  

Malcolm is right about the text in Annex 07 (…becoming aware of the alleged violation and how it allegedly affects them…), but I took the word “and” in this passage as simply a colloquialism - tying the word “affects” (present tense) to the awareness so that the two are meant to be contemporaneous.  

Moreover, had the CCWG WS1 intended to enable a claims period that could stretch a long and indefinite period of years I believe it would have generated considerable debate. 

I respectfully disagree with the idea of allowing the time period to be indefinite depending on claimants’ changing circumstances. 

David

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

-----Original Message-----
From: iot-bounces at icann.org [mailto:iot-bounces at icann.org] On Behalf Of Malcolm Hutty
Sent: Friday, August 26, 2016 6:09 AM
To: Burr, Becky; Greg Shatan
Cc: iot at icann.org
Subject: Re: [IOT] Discussion thread #2

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.



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             Malcolm Hutty | tel: +44 20 7645 3523
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