[IOT] Working methods for IRP IOT

Thu Apr 6 15:14:25 UTC 2017

Dear members of the IRP IOT,

On our call today we have an agenda item "5. Working methods - list and meetings".

We seem to be facing some of the same pressures that a number of the Work Stream 2 subgroups face - lots of work and overloaded participants - a factor in volunteer fatigue.

Let's discuss overhauling our working methodology - reversing the apparent CCWG norm of meetings sitting at the top of the work pyramid, supported by comments on list.

My suggestion, greatly aided by discussions with Bernie, would be to make the list the primary working tool - and meetings taking a supplemental role.

We need to get through the public comments. Why don't we do that, comment-by-comment, in discrete email threads with as many discrete entries in any particular comment thread as it takes. (My email on joinder, forwarded below, might serve as an example.)

Meetings will only be used for brief admin purposes and for focused discussion on comments as prepared on list - in other words meetings will not be for new original input into a comment. We won't decide an issue in just one meeting and so if someone wishes to contribute a new thought they can put it on list (right away) for the next meeting.

Meetings will be for review and confirmation - and if they end in less than an hour that would be fine.

Maybe staff can assemble list input for agenda items a day before each call for ease of reference.

On second-readings no new input would be considered and we will try to achieve consensus.

We may be able to move to meeting every other week rather than every week.

What I am hoping to achieve is an efficient system under which we can quickly and fairly review comments and make decisions.

Again - thank you all for participating and please also consider picking a comment-topic to lead.

Best wishes,

David

David McAuley

International Policy Manager

Verisign Inc.

703-948-4154

From: McAuley, David
Sent: Wednesday, March 29, 2017 4:14 AM
To: iot at icann.org
Subject: Joinder issue

Dear Members of the IRP IOT,

In this email, I want to move forward and seek your input on the issue of "Joinder" that was mentioned in several public comments and that was raised in the last call Thursday March 23rd.

The public comments on this topic were from (1) Fletcher, Heald & Hildreth<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfAkzQ0N4xz2.pdf>, (2) the GNSO's IPC<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdft75S74tOev.pdf>, and (3) the GNSO's NCSG<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfLoCFUVHjfN.pdf> (these three raised other issues as well).

The comments make these suggestions:

********* Fletcher: Provide actual notice to all original parties to an appeal to IRP of an underlying Third Party Proceeding (see expert panel decision appealability at Bylaw 4.3(b)(iii)(A)(3));

********* Fletcher: Provide mandatory right of intervention to all parties to the underlying proceeding being appealed to IRP;

********* Fletcher: Require IRP panel to allow all such parties to be heard before deciding on interim relief or protection;

********* IPC: Any third party "directly involved" in underlying action being appealed to IRP should be able to join or intervene as claimant of in opposition to claimant. (Multiple claimants should not have one collective 25-page limit for Written Statements);

********* NCSG: Right of intervention must be added for the winning party below. At the least they should be able to file briefs as Amici - meaning  "friends" of the panel;

********* NCSG: Emergency panels/interim relief requests must be openly heard with all relevant parties present.

As mentioned in the call, we are directed by bylaws that provide for:

********* Just resolution of disputes (Section 4.3(a)(vii)); and

********* Fundamental fairness and due process (Section 4.3(n)(iv)).

In addition, the bylaws specifically direct that the rules address "Issues relating to joinder, intervention, and consolidation of Claims..." (Section 4.3(n)(iv)(B)).

The current draft<https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf> of the updated supplementary procedures deals with joinder etc. at section 7 on page 8. The current draft leaves these matters up to a procedures officer and allows joinder by those who qualify as a claimant - which the winning party below is unlikely to be.

With these things in mind, as a participant in this group I propose that we agree the following points and, at a suitable time, ask Sidley to draft appropriate language into the draft supplementary procedures. I believe these comments have made reasonable and persuasive points about ensuring that the winning party below can defend the judgment below and will likely be a more motivated party in this respect than ICANN, although ICANN will be motivated, of course, to defend the notion that its compliance with an expert panel would not violate the article or bylaws. Suggestions:

1.       That all parties to the underlying proceeding get timely notice (including copies of all pleadings and other filed documents) of the institution of IRP;

2.       That all parties have a right to intervene or file an amicus brief, as they elect. If they elect to become a party they take on all rights/obligations of parties;

3.       That all parties have a right to be heard in any petition for interim relief - whether amici can be heard on interim relief would be up to the panel or procedures officer (whichever is acting);

4.       That all parties each enjoy equivalent rights/obligations with respect to pleadings - e.g. length, manner of filing, etc.

5.       That other "interested" parties be able to petition the panel or procedures officer (whichever is acting) to intervene (as parties or as amici) and the decision in this respect will be up to the panel or procedures officer (whichever is acting).

6.       That such joining parties to be given a reasonable amount of time to file their pleading or brief but this can be a relatively short period. They will have actual notice and the time should run from that date. They will have been a party below and so are in some degree prepared on the issues. I suggest 30 days here.

I welcome discussion on list and, if we need, on next call.

David

David McAuley

International Policy Manager

Verisign Inc.

703-948-4154

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