[IOT] First reading complete on timing issue

Malcolm Hutty malcolm at linx.net
Mon Jun 5 13:47:52 UTC 2017


Dear all,

The purpose of this mail is to inform you all, particularly those that
do not regularly attend the teleconference calls, that at our meeting on
Thursday 25th May we gave a first reading to an outcome on the timing
issue, and to notify you that we have a second reading scheduled for
Monday 12th June at 19:00 UTC.

You can see the text in the attached slides.

Our first reading text responds to criticism we received from the first
draft public comment by:

1) Lengthening the time claimants have to file after they become aware
that they have been harmed as a consequence of an an alleged breach of
ICANN's bylaws from 45 days (our original proposal) to 120 days.

2) Tightening the above requirement, by starting the clock when the
claimant "ought reasonably to have been aware", if that is sooner than
when they actually did become aware.

3) Basing the time the clock starts running exclusively on when the
claimant became aware or ought reasonably to have been aware of being
harmed.

Please note that point 3 drops a proposal from our previous draft for a
"right of repose" for ICANN, under which cases would be denied a hearing
if they were not brought within one year of the action or decision by
ICANN that is alleged to be in breach of the Bylaws.

The right of repose was heavily criticised in the public comment, in
part because it could have the effect of preventing a case that
challenges an ICANN decision or policy from ever being heard, no matter
how promptly it was filed (if, for example, implementation was delayed
for a year so that nobody was directly harmed until more than a year
after ICANN's initial decision). A claimant is only permitted to bring a
case if they are "materially affected" themselves.

A separate possible reason for dropping the right of repose is that
Sidley, our own independent legal counsel, also advised us that it is
inconsistent with the bylaws - which would make it unacceptable.
According to Sidley, the bylaws require that any deadline be based on
the claimant being aware of the harm. ICANN's legal department have said
they disagree with Sidley's interpretation of the bylaws. [*]

Please find attached the slides from last Thursday's meeting. The third
and final slide shows the text that was given first reading.

If you wish to object to second reading being given please speak up now,
and at the next call on 12th June.

Kind Regards,


Malcolm.

[*] First Sidley statement can be seen here:
http://mm.icann.org/pipermail/iot/attachments/20170106/9dcc4fb4/Sidley-ResponsetoCertifiedQuestionofCCWGIRPIoT-January42017-0001.pdf

There was a second Sidley statement, further emphasising this point,
sent to David McAuley by Holly Gregory on 6th April. This hasn't been
sent to the list

ICANN statement disagreeing with Sidley can be read here:
http://mm.icann.org/pipermail/iot/2017-May/000217.html

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
   Head of Public Affairs | Read the LINX Public Affairs blog
 London Internet Exchange | http://publicaffairs.linx.net/

                 London Internet Exchange Ltd
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         Company Registered in England No. 3137929
       Trinity Court, Trinity Street, Peterborough PE1 1DA
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