[IOT] FW: Question from IRP IoT team

[McAuley, David]

Dear IRP IoT members,



In anticipation of our call shortly, I am enclosing a copy of the mail I sent to Sidley last evening regarding the timing-related question that Becky, Malcolm, and I agreed to handle as per the last IoT call.



We discussed, agreed, notified the CCWG co-chairs prior to seeking legal advice and proceeded in accordance with a plan for seeking legal advice that I will mention on the call shortly.



Best regards,

David



David McAuley

International Policy Manager

Verisign Inc.

703-948-4154



From: McAuley, David
Sent: Thursday, December 15, 2016 5:47 PM
To: Gregory, Holly (holly.gregory at sidley.com)
Cc: León Felipe Sánchez Ambía (leonfelipe at sanchez.mx); Mathieu Weill (mathieu.weill at afnic.fr); Thomas Rickert (thomas at rickert.net); Samantha.Eisner at ICANN.org; Bernard Turcotte (turcotte.bernard at gmail.com)
Subject: Question from IRP IoT team



Dear Holly,



Below is a question I am posing as lead of the IRP Implementation Oversight Team.



Below that are comments from Sam Eisner that are germane to this and which Sam offered as I worked through the budgetary implications of asking the questions.



We are hoping for answers well in time to react, if needed, in the public comment period now open on these new rules- which closes January 10 (https://www.icann.org/public-comments/irp-supp-procedures-2016-11-28-en).



Best holiday wishes Holly.



David



David McAuley

International Policy Manager

Verisign Inc.

703-948-4154



--



QUESTION



The question we pose concerns section 4 (Time for Filing) of the new draft supplemental rules of procedure for IRP (draft rules here: https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_draft-2Dirp-2Dsupp-2Dprocedures-2D31oct16-2Den.pdf&d=DgMFAw&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=bQgDWWudWTG6180zNVScgBiyYwZIGEsbdFrE_SO1ZJo&s=lvxOXU1Fao3fQrnLvrGJLfK1oE4djNKaP9OuJHrkPDc&e=>).



Becky, Malcolm Hutty, and I have been engaged in a discussion about timing and agreed a way forward.



That agreement is summarized by me below under AGREEMENT.



Is the language in section 4 an appropriate and clear capture of this agreement we reached as summarized below.



If it is not, can you suggest revisions that the three of us might individually or collectively suggest in the now open comment period to capture the agreement?



 AGREEMENT



Agreement in principle on timing of claims:



·         An action/inaction by ICANN that is facially invalid (i.e. it could not be implemented in a way that did not violate the Articles or Bylaws) could be challenged anytime. (Hard to imagine how "inaction" applies here but assume we should leave as-is.)



·         Otherwise, the 45 days/1-year-overall time limit applies from the time a claimant is actually materially harmed by an action/inaction.



C OMMENT BY SAM:



On the particular question posed, it is my opinion that the language in the proposed rules do NOT include an allowance for "facial" violations of the Bylaws to be brought at "anytime" - there is no definition in there of what a "facial" violation would be or how to identify it and treat it differently than any other alleged violation, etc.  The rules only include an allowance for a 45 day/1 year max.  At this point, we would need to have documentation in the public comment to support such a change, though a change like that would likely be difficult to draft and subject the entirety of the IRP to no restriction on time to file.  This is likely to not coincide with the objectives for the IRP that were laid out in Annex 7 of the CCWG's WS1 report.





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