[IOT] REMINDER - IRP IOT at 5:00 UTC Wednesday 7 Aug

[Malcolm Hutty]

On 07/09/2016 00:15, Malcolm Hutty wrote:
> 2. Becky, you had previously drawn a distinction between Disputes
> similar to those permitted in the past, which were allegations of
> procedural irregularity in which disputed facts were important, and
> Disputes of a substantive nature, where the allegation is that the
> action is facially invalid (again, the obvious example being "What ICANN
> is doing is outside this Mission" or "What ICANN is doing is an
> illegitimate discrimination/favouritism/disparate treatment").
> 
> I think this is a very helpful and important distinction.
> 
> Rather than arguing about the length of the bar, while holding in our
> own minds example scenarios in completely different categories to each
> other, perhaps we should consider limiting the time bar to the former
> category i.e. to cases (or arguments) concerning procedural
> irregularities, and excluding (i.e. allowing the IRP to decide) whether
> an action is facially improper/ultra vires.

I am replying to self with some suggestions for how we might bring this
about. I would like to offer some options for first draft language for
the group's consideration.


(Alternative 1, which is unwieldy and inelegant but leaves the current
section 4 in place)


"4A. Effective date of action for the purposes of time bar

For the purposes of section 4 of these rules ("time for filing") the
date of the action which is the subject of the dispute shall be
calculated as follows

i) in the case where of a Dispute where
     a) the matter complained of is a policy, requirement or
        other matter of continuing effect, and
     b) the nature of the Dispute is an allegation that the
        policy, requirement or other matter is substantively
        incompatible with the Bylaws,
    the date of the action shall be deemed to be the latest date that
    the policy or requirement was in force, or that the matter had
    effect.

ii) in the case of a Dispute alleging a procedural irregularity, the
date of the action shall be deemed to be the later of
     a) the date that the irregularity was alleged to have occurred; and
     b) the date that the action affecting the CLAIMANT took place;

iii) in any other case, the date shall be the date that the action
affecting the CLAIMANT took place.

4B. Application of time bars to multiple issues within a single Dispute.

The time bar set out in section 4 of these rules shall be applied
separately to each matter of dispute within a particular filing. [This
may result in the IRP Panel considering a complaint alleging that the
content of a policy is substantively incompatible with the Bylaws, while
refusing to consider allegations from the same CLAIMANT that there was a
procedural irregularity in the manner of ICANN's adoption of the policy
under dispute.]"

[Do we need to further define "procedural irregularity" and "substantive
incompatibility", or do you think these are sufficiently clear concepts?]

[I put square brackets around the second sentence in 4B because it's
technically just an explanatory example, which isn't something that
would normally be included. But it may be necessary to clarify the
meaning of the first sentence.]


(Alternative 2, which seems more legible, but requires rewriting section 4)

4. Time for filing

An INDEPENDENT REVIEW is commenced when CLAIMANT files a written
statement of a DISPUTE.  A CLAIMANT shall file a written statement of a
DISPUTE with the ICDR no later than the date set out below.

i) In the case where of a Dispute where
     a) the matter complained of is a policy, requirement or
        other matter of continuing effect, and
     b) the nature of the Dispute is an allegation that the
        policy, requirement or other matter is substantively
        incompatible with the Bylaws,
   the CLAIMANT may file their written statement at any time while the
   policy or requirement is in force or the matter has effect, [but no
   later than [XXX] after they became aware that they were in fact
   actually affected by it].

ii) In any other case, the CLAIMANT shall file their written statement
no later than the earlier of
    a) [YYY] after the date that the CLAIMANT became aware that they
       were in fact actually affected by the action
    b) [ZZZ] after the date that the action affecting the CLAIMANT took
       place or, if later, that the alleged irregularity took place.

In case of a Dispute to which (i) applies, arguments by the CLAIMANT
alleging additional procedural irregularities shall not be considered
unless the CLAIMANT filed their written statement within the time set
out in (ii)."



I would suggest these values

XXX: 1 year (or possibly removing this time limit altogether)
YYY: 1 year (or possibly, six months if neither CEP nor Request for
Reconsideration are used, one year if they are)
ZZZ: 3 years

but that's a different discussion.



No doubt all this wording can be improved, but I hope it's a useful start.

Malcolm.
-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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