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

[Malcolm Hutty]

Dear Liz,

Thank you for sending Jones Day's reading of the Bylaws regarding the
timing issue. I set out below areas where I disagree, and reasons why I
think Sidley's reading is to be preferred.

That said, I think we should not allow the wood to blind us to the
trees. Even if Jones Day were correct that we are *permitted* under the
Articles to set a fixed deadline that would strike out otherwise valid
Claims merely because the Claimant could not reasonably have known they
had a case any earlier, there is still no good reason why we should
choose to do so.

I was very heartened when Samantha said on our previous call that ICANN
did not consider it in its interests to minimise the number of IRP
cases, but considered the process an important contribution towards the
success realisation of their goals. Having achieved consensus on that
objective, there is no need to strike out claims unless the passage of
time (and corresponding loss of evidence and witnesses) would prevent
the IRP from resolving the dispute fairly. Nonetheless, we have
compromised on 120 days after the Claimant becomes aware of the harm,
which is likely on most occasions to be a much more rigorous schedule.

We would only be undermining what Samantha tells us is also ICANN's
objective by preventing the hearing of cases that could not have been
brought any sooner.

Detailed responses on Jones Day's comments follow below.

Malcolm.

> The Bylaws further provide that the determination concerning the
> appropriate number of days a claimant has to file an IRP was a decision
> left to the IRP IOT.  /See/ Section 4.3(n)(iv);/see also /Annex 7 of the
> CCWG report, paras. 18-19./ /It is thus entirely consistent with the
> Bylaws and within the IRP IOT's discretion to propose a rule that limits
> the total number of days a claimant may have to file an IRP.

That claim is open to challenge.

Certainly, Section 4.3(n)(iv) commands that the Rules of Procedure must
address

"(A) 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;"

Firstly, note that reference is to "time", not "number of days".

Secondly, the fact that the Rules of Procedure must address the time
issue doesn't in itself support your suggestion that the IOT has
unfettered discretion as to how to address the timing issue.

Thirdly, note (as Sidley do) that the very clause Jones Day cites as
permitting an arbitrarily fixed cap actually requires the time rule to
be based on the date of the Claimant's actual or imputed knowledge.


>  Sidley
> emphasizes that that decision must be tethered in some fashion to the
> time a claimant knew or should have known of the action giving rise to
> the dispute; the current draft rule (as posted for comment) meets that
> standard.  The IRP IOT also is empowered under the Bylaws and the CCWG
> Proposal to recommend that, to further the purposes of the IRP, a
> claimant reasonably "should have known" or "should have become aware" of
> the challenged action within 12 months of the time the offending conduct
> occurred.  Nothing in the Bylaws or the CCWG Report suggests that the
> IRP IOT can't recommend a rule to that effect.

I disagree. At the least, the following suggest otherwise:

1. Section 4.3(n)(iv) says that the test of imputed knowledge must be
based on what it was *reasonable* to have known. It is therefore not
open to us to declare that what was reasonable in advance, and have that
supersede what was actually reasonable.

2. Section 4.3(n) says that the purpose is to achieve "fundamental
fairness and due process". Any rule antithetical to that purpose would
be invalid.

3. Section 4.3(a) says that the purpose of the IRP is "to hear and
resolve Disputes". A rule that tends to prevent that is also invalid.
See also 4.3(a)(vii) "Secure the accessible, transparent, efficient,
consistent, coherent, and just resolution of Disputes." and 4.3(a)(ix)
"(ix) Provide a mechanism for the resolution of Disputes".


> In fact, Sidley appears to concede as much in its 4 January 2017 memo
> (at p. 4):  */"It may be that the IRP Subgroup has determined that 12
> months is the period in which a claimant reasonably should have known of
> the action or inaction giving rise to the Dispute in all
> circumstances."/*  While Sidley goes on to express its view that such a
> determination could be subject to criticism because "it could result in
> claims being foreclosed before an injury, and hence knowledge of an
> injury, had ever arisen," it appears that Sidley previously agreed that
> such a determination was feasible under the Bylaws.   

I think this is misrepresenting Sidley's position. They acknowledged
that an argument could be made that, in a particular case, the facts
might align with a determination that the the Claimant ought reasonably
to have known before a given date. However Sidley also warned us against
relying on that as a general rule, because on a different set of facts
there might be no such alignment, and then the rule would be shown to be
invalid.

> Furthermore, eliminating the statute of repose entirely is inconsistent
> with the CCWG's stated goal of enhancing ICANN's accountability.  As
> stated in Annex 7 of the CCWG Report: “The overall purpose of the
> Independent Review Process (IRP) is to ensure that ICANN does not exceed
> the scope of its limited technical Mission and complies with its
> Articles of Incorporation and Bylaws.”  (CCWG Report at ¶ 1).  In
> particular, the CCWG proposal makes clear that the IRP “should … ensure
> that ICANN is accountable to the community and individuals/entities.”
>  (/See also id/. ¶ 7.)  Permitting IRPs challenging ICANN Board or Staff
> actions to be brought at any time does not further this purpose; to
> ensure accountability, actions should be challenged in a timely manner.

Firstly, this paragraph aims at a straw man: we have rejected the
proposal that IRP cases could be brought "at any time". We have said
they must be brought within 120 days of when the Claimant knew or ought
to have known that they were harmed.

Secondly, there is a major logical flaw in Jones Day's suggestion that a
fixed arbitrary limit would encourage IRP cases to be filed more
promptly: we have already required them to be brought promptly once the
Claimant is aware. It is not possible encourage Claimants who are
ignorant that they might have a claim to bring it more promptly by
striking out their claims when they do become aware: the only thing that
could help them bring it more promptly would to be make them aware sooner.

Accordingly, all that a fixed deadline would achieve would be to strike
out some claims that would otherwise be heard. This is directly contrary
to the declared purpose of the IRP that you cite.


> Finally, Draft Rule 4 already constitutes a substantial expansion from
> the time limitations set forth in the previous iteration of ICANN’s
> Bylaws.  

True. As part of transition we substantially strengthened the IRP, in
order to make ICANN fit for transition. Deviation from pre-transition
Bylaws is entirely deliberate.

> In an
> effort to “[e]nsure that ICANN is accountable to the community and
> individuals/entities for actions or inaction outside its Mission or that
> otherwise violate its Articles of Incorporation of Bylaws” (CCWG Report
> ¶ 7), the IRP IOT sought “to balance the fact that individuals may not
> always become aware of ICANN actions when they occur with the need for
> certainty about the finality of ICANN actions.”  (Report of the IRP IOT
> at 3, 31 October 2016.)  

That is so. And that balance that was struck was to recommend that there
should be a time limit, but that this should be based on the Claimant's
awareness (including when he should reasonably have been aware).


> As a result, the CCWG proposed (following much debate) that claimants be

Correction: the CCWG has not proposed anything. It is not correct to
ascribe CCWG approval to our first draft.

The IOT - we - proposed it. All the CCWG has done is authorised us to
circulate our first proposal for public comment. Implicitly, the CCWG
has called on us to reconsider our proposal in response to the
substantial adverse public comment we received.


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