[IOT] FW: Preparation for tonight's call on timing issue

McAuley, David dmcauley at verisign.com
Mon Apr 10 17:36:46 UTC 2017

Dear members of the IRP IOT,

As you know, Sam Eisner, Malcolm Hutty and I are discussing possible ways to finalize the “repose” issue relating to the timing within which IRP claims must be filed. We are doing this with a view to coming back to this group with a suggestion.

I have asked the Sidley law firm for some assistance in our discussions and want to forward their reply (from Holly Gregory) to you FYI.

Best regards


David McAuley

International Policy Manager

Verisign Inc.


From: Gregory, Holly [mailto:holly.gregory at sidley.com]
Sent: Thursday, April 06, 2017 2:01 AM
To: McAuley, David <dmcauley at Verisign.com>; turcotte.bernard at gmail.com
Cc: McNicholas, Edward R. <emcnicholas at sidley.com>; Grapsas, Rebecca <rebecca.grapsas at sidley.com>
Subject: [EXTERNAL] RE: [IOT] Preparation for tonight's call on timing issue

Dear David,

As we noted in our January 4, 2017 memo (at page 3 of the attached), the Bylaws (Section 4.3(n)(iv)(A)) provide that time limits on seeking IRP redress will run from when a claimant “becomes aware or reasonably should have become aware of the action or inaction giving rise to the Dispute”:

“The Rules of Procedure are intended to ensure fundamental fairness and due process and shall at a minimum address the following elements: The time within which a Claim must be filed after a Claimant becomes aware or reasonably should have become aware of the action or inaction giving rise to the Dispute.”  (Emphasis supplied.)

This provision of the Bylaws is better understood in the context of  Annex 7 of the CCWG report (attached) which makes clear that the time for the filing of a claim must relate to when the impact of the action or inaction could be felt by the claimant.  It provides that

“Any person, group or entity “materially affected” by an ICANN action or inaction in violation of ICANN’s Articles of Incorporation and/or Bylaws shall have the right to file a complaint under the IRP and seek redress. They must do so within a certain number of days (to be determined by the IRP Subgroup) after becoming aware of the alleged violation and how it allegedly affects them..” (paragraphs 18-19, emphasis supplied)

The specification in the Bylaws and Annex 7  that the time for bringing a claim runs from the time the claimant became aware of the action or inaction in relation to its impact on the claimant  is at odds with the concept of a purely time-based  statute of repose that  runs from the action or inaction without regard to when the action or inaction was or reasonably should have been discovered.   Since  a statute of repose would be inconsistent with a time limit based on awareness/reasonable awareness of the action/inaction (for example, where such awareness occurred after the expiration of the statute of repose), it would be inconsistent with the plain language of the Bylaws, as well as Annex 7 of the CCWG report (see attached at paragraphs 18-19 and the January 2017 memo at page 4).

Best regards,


Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice

+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

On Fri, Mar 31, 2017 at 2:09 PM, Bernard Turcotte <turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>> wrote:


   Still working on the other part.

   In the meantime David has asked me to seek your view on the following -  there is an argument wrt repose between Sam Eisner (see her note below) and Malcolm Hutty regarding the interpretation of your advice (Malcolm believes your advice to be that any repose would be against the Bylaws).

   Any clarification on this would be greatly appreciated.


   Bernard Turcotte for David McAuley.

   ---------- Forwarded message ----------
   From: Samantha Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
   Date: Thu, Mar 30, 2017 at 2:25 PM
   Subject: Re: [IOT] Preparation for tonight's call on timing issue
   To: Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>>, "iot at icann.org<mailto:iot at icann.org>" <iot at icann.org<mailto:iot at icann.org>>

   Thanks Malcolm -

   I wanted to follow up on one issue from your email, which I¹d raised
   during the last IOT call.  Specifically, I had requested inputs on where
   Sidley said that a limitation on repose was inappropriate.  I note you
   include below the following argument:

   "Perhaps even more important, though, is the opinion of our independent
   legal Counsel, who says that the statute of repose is incompatible with
   the Bylaws that have just been adopted to ensure ICANN's accountability.

   "Sidley writes:
   'Applying a strict 12-month limit to any IRP claim that commences at the
   time of the ICANN action or inaction and without regard to when the
   invalidity and material impact became known to the claimant, is
   inconsistent with the Bylaws (and is inconsistent with the terms of
   Annex 7 of the CCWG Report)." (page 4, letter of January 4, 2017).¹²

   To be clear, this quote is taken out of context.  Sidley was not
   responding to a a question of whether it was inappropriate to have an
   outside time limit on when IRPs can be raised.  Sidley was responding to a
   question of whether the rules [as posted for comment] were consistent with
   a suggestion raised in the IOT that ICANN actions that are ³facially
   invalid² under the Bylaws should be subject to challenge at any time.
   {notably, this ³facially invalid² issue is no longer being discussed).
   Their answer (as well as ICANN¹s) was that the rules as written did not
   support such a claim being brought at any time.

   HOWEVER, Sidley also noted that their proposed revisions that would allow
   for the ³facially invalid² claim ALSO INCLUDED language that would "leave
   in place the
   45-day/12-month limit for ³as applied² challenges." (I.e., ICANN acts that
   result in injury).

   While there may be other bases for the IOT seeking to not include an
   ultimate period of repose on IRP claims, I think that it is important to
   make sure it¹s not based on an assertion (taken out of context) that a
   period of repose is against the Bylaws.  ICANN is not of the opinion that
   the Bylaws would be violated if an outside repose period were instituted.

   From my perspective, there are many ways to address the outside time limit
   claims issue.  The concept that it¹s against any sort of arbitral norms
   doesn¹t really make sense - there are statutes of limitations in many
   areas, and access to arbitration doesn¹t overtake those statutes.  There
   also seem to be some concerns, for example, that decisions on acceptance
   of policy recommendations set up the time limit on ICANN actions in
   implementing the policy - but those would be separate actions with their
   own separate deadlines.  Indeed, any time that ICANN acts outside of the
   Bylaws is its own new starting point.  Maybe there are ways that we can
   make that clearer, as part of this discussion?

   Samantha Eisner
   Deputy General Counsel, ICANN
   12025 Waterfront Drive, Suite 300
   Los Angeles, California 90094
   Direct Dial: +1 310 578 8631<tel:(310)%20578-8631>

   On 3/30/17, 8:47 AM, "iot-bounces at icann.org<mailto:iot-bounces at icann.org> on behalf of Malcolm Hutty"
   <iot-bounces at icann.org<mailto:iot-bounces at icann.org> on behalf of malcolm at linx.net<mailto:malcolm at linx.net>> wrote:

   >Dear all,
   >On the IOT call tonight we will return again to the issue of the limit
   >of time for filing an IRP claim.
   >Last call we made significant progress on this issue. We agreed by
   >consensus to reject the proposal by the Business Constituency and by the
   >ISPCP to introduce a moratorium on introducing new timing rules, pending
   >significant study of the likely effect.
   >We also agreed, by consensus and compromise, to settle on a limit for
   >filing of 120 days after the claimant was aware of the harm that they
   >had suffered, or when the claimant ought reasonably to have been aware
   >of the harm, if that is sooner. We agreed to leave precise wording to
   >our independent counsel to implement this agreement in principle.
   >Both of the above are real progress.
   >I thought we came close to agreeing not to adopt a "statute of repose",
   >an outside date at which ICANN would be immune any possibility of
   >challenge. However Sam Eisner asked that we keep this issue open for
   >further discussion on tonight's call.
   >In preparation for that discussion, I have at the end of this e-mail
   >provided excerpts of the comments from those responding to the public
   >comment period on this issue.
   >As you can see from those extracts, they are both overwhelmingly opposed
   >to having a statute of repose in principle, and also give a high level
   >of importance to this issue. Opposition is also spread across a broad
   >range of respondents, commercial and non-commercial organisations,
   >intellectual property interests and network operators, individuals and
   >large entities.
   >Perhaps even more important, though, is the opinion of our independent
   >legal Counsel, who says that the statute of repose is incompatible with
   >the Bylaws that have just been adopted to ensure ICANN's accountability.
   >Sidley writes:
   >"Applying a strict 12-month limit to any IRP claim that commences at the
   >time of the ICANN action or inaction and without regard to when the
   >invalidity and material impact became known to the claimant, is
   >inconsistent with the Bylaws (and is inconsistent with the terms of
   >Annex 7 of the CCWG Report)." (page 4, letter of January 4, 2017).
   >Given the combination of overwhelming opposition from the public comment
   >to a statute of repose, and the professional opinion of our Counsel that
   >such a repose is inconsistent with by the Bylaws and the CCWG's Final
   >Report on WS1, I will this evening ask your support for dropping this
   >issue and proceeding on the basis of the timing rule as agreed at the
   >last meeting.
   >If we are able to agree the above, there are still five items still to
   >address. You can see these in my slides for the last meeting, but to
   >recap briefly:
   >- a proposal that we exclude days spent in mediation from the count of
   >days towards the deadline;
   >- a proposal that we are explicit that we mean calendar days;
   >- a proposal that we start the count of days from the date that
   >translated documents are available;
   >- a proposal that we grant the IRP Panel a discretionary power to hear
   >claims filed after the deadline in certain circumstances;
   >- a proposal that the effectiveness of the timing rule be reviewed after
   >a set period.
   >Personally, I do not see these as complicated issues, so I would like us
   >to be ambitious and seek to achieve consensus on them all this evening.
   >Kind Regards,
   >"Time limits for correcting an error in policy does not make sense.
   >There should be no time limit for correcting an error. So if any problem
   >arises in the future and time has elapsed then we all have to live with
   >the problem because you implemented a time limit."
   >"And obviously people who are affected by a specific decision based on a
   >policy will be informed of the decision. So in that case the time bar
   >should start to run from the time of notification of the decision."
   >Rosenzweig and Schaeffer:
   >"We believe this proposal improperly limits the ability of claimants to
   >challenge alleged Board Bylaw violations and divests the internet
   >community of a valuable tool for restraining Board behavior. As a
   >result, we think the proposal should be modified to a pure discovery
   >rule by striking the last clause establishing an outside time limit of
   >12 months.
   >Indeed, this seemingly procedural provision may have critical practical
   >consequences. The IRP process in intended to be the principal means of
   >countering the potential for ICANN mission creep. And the constrained
   >mission is seen as the single most significant innovation of the
   >Accountability process. The ability of the IRP to act as a check on
   >mission creep is critically weakened by a time-constrained IRP because a
   >Board decision¹s impact on the mission may not be become evident until
   >after implementation and application in future circumstances."
   >CCG Delhi:
   >"However, barring all claims after one year of the action or inaction is
   >extremely problematic.
   >"It should also be noted that arbitral institutions do not usually
   >impose time limits on the submission of a claim. A survey of leading
   >arbitral institutions such as the International Chamber of Commerce, the
   >London Court of International Arbitration and the Stockholm Chamber of
   >Commerce suggests that this is not a common practice."
   >[citations supplied]
   >"This is an extraordinary loophole"
   >"But the time limits make no sense at all when applied to disputes over
   >consensus policies that are alleged to transgress mission limitations.
   >The mission limitations are meant to protect fundamental individual
   >rights, and to permanently constrain ICANN¹s mission. They are not
   >matters of expediency and are not time-dependent. If a policy allows
   >ICANN to expand its mission beyond its intended remit, the actions it
   >takes under that policy should be subject to challenge at any time."
   >"Furthermore, there should be no statue of repose. [...]
   >The imposition of a statute of repose encourages non-transparent
   >behavior. If ICANN can prevent Claimants from learning about its actions
   >or inactions for 12 months then Claimants cannot commence an IRP against
   >"It is imperative that ICANN recognize and act upon our strenuous
   >objection to the proposed statues of limitations in the Updated
   >Supplementary Procedures prior to their adoption. The proposed limits
   >are unfair, inconsistent with international arbitration norms, and may
   >create substantial concerns around the legitimacy of ICANN as a
   >standalone, multi-stakeholder model organization."
   >"The 12 month fixed limit from the date of the action is not merely too
   >short, butmiscalculated. The timing rule should be based on the date of
   >knowledge of the harm that ICANN¹s action gave rise to, rather than
   >calculated from the date of the action itself. To do otherwise would
   >unjustly exclude important cases from being heard by the IRP.
   >Both these flaws are serious, but it is the latter that we consider
   >catastrophic. The effect of the latter will be to seriously undermine,
   >and in many cases utterly negate, the enforceability of the Mission
   >limitation that was a key commitment by ICANN in the 2016 transition.
   >The seriousness of this commitment is shown by statements in the bylaws
   >promising ICANN¹s accountability as enforced through an accessible,
   >transparent and just resolution of dispute by the Independent Review
   >            Malcolm Hutty | tel: +44 20 7645 3523<tel:+44%2020%207645%203523>
   >   Head of Public Affairs | Read the LINX Public Affairs blog
   > London Internet Exchange |
   >                 London Internet Exchange Ltd
   >           Monument Place, 24 Monument Street London EC3R 8AJ
   >         Company Registered in England No. 3137929
   >       Trinity Court, Trinity Street, Peterborough PE1 1DA
   >IOT mailing list
   >IOT at icann.org<mailto:IOT at icann.org>

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