[IOT] IRP IOT call reminder AND Joinder issue text

Malcolm Hutty malcolm at linx.net
Sun Dec 3 18:11:49 UTC 2017


On 01/12/2017 19:18, McAuley, David via IOT wrote:
> Dear members of the IRP IOT:
> 
>  
> 
> *Reminder* – we have next call on *Thursday, Dec, 7^th , at 19:00 UTC.*
> Please double-check that time in case you are located where a daylight
> savings time change has taken place.
> 
>  
> 
> I will send an agenda by Tuesday and will be sending some issue-specific
> emails in the interim as well.
> 
>  
> 
> In this email I also address the *Joinder issue* we have been
> discussing. On our last call on Nov. 14^th , Liz le of ICANN Legal
> suggested a tweak to the language we have been focusing on and she
> promised to send along drat text in that respect.
> 
>  
> 
> Here is what Liz has proposed:
> 
>  
> 
> 1.            If the person or entity participated in the underlying
> proceeding, (s)he/it/they receive notice.
> 
>  
> 
> 1.A.        If the person or entity satisfies (1.), above, then
> (s)he/it/they have a right to intervene in the IRP. 
> 
>  
> 
> 1.A.i.      BUT, (s)he/it/they may only intervene as a _party_ if they
> satisfy the standing requirement set forth in the Bylaws.
> 
>  
> 
> 1.A.ii.     If the standing requirement is not satisfied, then
> (s)he/it/they may intervene as an amicus.
> 
>  
> 
> 2.            For any person or entity that did not participate in the
> underlying proceeding, (s)he/it/they may intervene as a party if they
> satisfy the standing requirement set forth in the Bylaws.
> 
>  
> 
> 2.A.        If the standing requirement is not satisfied, the persons
> described in (2.), above, may intervene as an amicus if the Procedures
> Officer determines, in her/his discretion, that the entity has a
> material interest at stake directly relating to the injury or harm that
> is claimed by the Claimant to have been directly and causally connected
> to the alleged violation at issue in the Dispute.
> 
> I personally (not as IOT lead) find this acceptable and encourage each
> of you to consider it. If you object, or have comments, please come on
> list by Dec. 7^th or join the call to make your points. This is drawing
> to a completed second reading at the Dec. 7^th call.

I have some questions about this language (three issues).


First issue:
===========
Paragraph 1.A.i appears to say that if a person who was involved in the
underlying procedure has standing, they may only intervene as a party
and not as amicus.

Is that intentional? If it is actually deliberate to deny people who
have standing the right to intervene as amicus, I would like to hear the
reason.

However I suspect it is an accidental artefact of drafting.

Second issue
============

Paragraph 2.A says that the Procedures Officer may award to someone who
does not have standing the right to intervene as amicus, but only if

    "the entity has a material interest at stake directly relating to
     the injury or harm that is claimed by the Claimant to have been
     directly and causally connected to the alleged violation at issue"

Standing requires the party to be "materially affected". So I think a
party that can satisfy the test above will have standing.

Accordingly, Paragraph 2.A is superfluous and should be removed.


Third issue
===========

As I said earlier in this discussion, I am concerned that in limiting
rights to intervene to those that actually have standing, we are
depriving people of the right to intervene who are satisfied with the
current situation but would have had standing had ICANN done as the
Claimant wants.

I think such people should have the right to intervene in opposition to
the Claimant.

David asks:  
> 
> For changes to text I ask for specific language proposals, not just
> observations. We are entering the home stretch on these public comments
> to the draft supplementary procedures and we need specific text to
> consider.

I would like to suggest the following alternative to Liz's text, which
cures all three issues identified above:

1. A person or entity that satisfies any of the following tests shall
have the right to intervene either as a party, or as amicus, at their
option:

a) a person or entity who also has standing under the bylaws to
challenge the decision or action under review;

b) a person or entity who would have had standing under the bylaws to
challenge ICANN's decision or action, if ICANN had decided or acted as
the Claimant alleges it ought to have done;

c) a person or entity who would have had standing under the bylaws to
challenge ICANN's decision or action, if ICANN had decided or acted as
the Procedures Officer, in his absolute discretion, considers a
reasonably plausible outcome should be Claimant be successful.

2. A person or entity that does not have the right to intervene under
paragraph 1 may nonetheless intervene as an amicus, but not as a party,
if they participated in the underlying procedure that gave rise to the
decision or action under review.

3. When an IRP case is filed challenging the a decision or action by
ICANN, ICANN shall notify all persons and entities that participated in
the procedure that gave rise to that decision or action."


I also happen to think this wording is easier to understand, but perhaps
that's just because I wrote it!

Having written this out, I see that the effect is that everyone who
participated in the underlying process has a right both to notice and to
intervene as amicus. That's not something new in my text, it's also true
of Liz's text, but my text makes it more obvious.

Is it really intended to give these rights so broadly?


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