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

Burr, Becky Becky.Burr at neustar.biz
Fri Apr 28 14:04:12 UTC 2017

I would have thought that the provision of injunctive relief addresses
this issue

J. Beckwith Burr 
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On 4/27/17, 6:13 PM, "iot-bounces at icann.org on behalf of Malcolm Hutty"
<iot-bounces at icann.org on behalf of malcolm at linx.net> wrote:

>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
>Indeed, I believe the IRP has itself already said as much, in a previous
>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 Hutty | tel: +44 20 7645 3523
>   Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange |
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