[IOT] Imminently affect (Was Re: Fwd: segmenting certain IRP comments)

[Malcolm Hutty]

On tonight's call I promised to recapitulate and amplify my comments on
INTA's public comment.

INTA proposed, to paraphrase, that the qualifying standard "materially
affected" should be extended to include those that would imminently be
affected, not only those who had already been affected.

Firstly, I would like to say that I agree with David's assessment that
the standard "materially affected" is set out in the Bylaws, and also
that to exceed the Bylaws is beyond our authority, and to propose
changes to the Bylaws is beyond our scope. Moreover, I think we should
be strict with ourselves and not appear to trespass on an extension of
the Bylaws, lest our output be deemed inconsistent and therefore invalid.

That said, as a matter of policy, I am sympathetic to INTA's concern. It
is in nobody's interest to prevent an IRP case being brought over the
mere technicality that something that is certain and imminent has not
yet occurred, but becomes irreversible and so moot the instant it does
occur.

Indeed, I believe the IRP has itself already said as much, in a previous
case.

I would therefore like to ask our group to explore whether there is
anything that might be done within the existing bylaws that might go at
least some way towards addressing INTA's underlying concern, even if not
in quite the manner they proposed.

Would it be possible, for example, to write a rule that said that when
considering whether a party was "materially affected", the panel must
take into account how that party is affected by actions ICANN has said
that it intends to take?

I offer this only as one example - maybe it doesn't work, and maybe it
doesn't go far enough, but it illustrates the area I think we could
profitably explore.

I don't want to put too much burden on our independent counsel, but
since this is a technical area I also wonder whether we might ask Sidley
for ideas as to how far we might go, consistent with the existing
bylaws, to avoid the creating "tipping point" where a case passes from
"premature" to "moot" without ever passing through "timely".

I don't really have a solution here, but of all the public comment
proposals that suggested approaches apparently inconsistent with the
bylaws, this is the one that I think deserves a more generous hearing.


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