[IOT] possible compromise idea on timing "repose" issue

[Greg Shatan]

May I suggest that some concrete scenarios (a/k/a "stress tests") might
help illustrate how the different suggestions would work in practice, and
how the concerns will manifest themselves as a result of adoption of one
suggestion or the other?

I would also caution against parallels between a breach of fiduciary duty
and an action or omission that arguably violates the Bylaws.  The latter is
a fundamental question of whether an action or inaction was within the
power of the corporation (i.e., did not violate the Bylaws) or was not
within the power of the corporation (i.e., did violate the Bylaws).  If the
harm from that Bylaws violation is not incurred by a potential complainant
until 7 years after the action, why should an action be time-barred?  I
would argue that what you have is a continuing breach, and thus the clock
never starts, much less runs out.

I have more sympathy for repose in the form of laches (i.e., sitting on a
claim that has ripened and could be brought, and is known or should
reasonably be known to the potential complainant).  I have even mores
sympathy if the harm from that claim is not ongoing, and is thus receding
in time.  An ongoing harm raises more difficult questions, even if the
complainant knows or reasonably should have known that a claim had ripened.

But I can't must much sympathy for the concept of repose where a
complainant was either not harmed until some years later, or where actual
or constructive knowledge did not happen.  What that "repose" does is
essentially ratify an act or omission that is at least arguably outside the
power of the corporation.  I recognize that many of these situations are
going to be judgment calls, but that is true regardless of the timing.  And
in any event, that is why we have panels and hearings.

If we do need absolute repose at some time, I suggest we use the Rule
Against Perpetuities as our model (if memory serves, 21 years after the
death of the last pertinent person then living).

Greg

Greg


Greg

On Sun, Jun 11, 2017 at 1:46 PM, Malcolm Hutty <malcolm at linx.net> wrote:

> On 2017-06-09 21:36, McAuley, David via IOT wrote:
>
>> Dear members of the IRP IOT,
>>
>> The fourth item on our agenda for Monday's call (19:00 UTC) is the
>> timing issue - this has been a difficult issue for us and Malcolm has
>> very capably been leading it.
>>
>> In my participant role, I am going to suggest a compromise position
>> (not one that I have mentioned before). It seems there are reasonable
>> views on both sides of the issue and I offer this as a compromise that
>> may be a reasonable way forward.
>>
>
> [...]
>
> But we have grappled more with whether an overall "repose" period
>> should apply.
>>
>> My compromise suggestion is to choose a time-limitation period of
>> repose analogous to a time limitation for claims of breach of
>> fiduciary duty. A quick Wikipedia search led me to conclude that in
>> California that would likely be four years.
>>
>> So for overall repose, what about a cap of four years from date of
>> ICANN action. Breach of fiduciary duty is not too far removed from the
>> idea of breach of articles or bylaws.
>>
>
> Thank you for the kind words David, but this isn't really a compromise,
> because this is a rather binary question.
>
> The objection to repose is (in the main) an objection to repose in
> principle,
> not a quibble over how long it should be before it kicks in.
>
> Any form of words in which a claimant can be denied the opportunity to
> bring a claim on the grounds that it is too late, even if he was formally
> precluded from bringing it any earlier, is (for those who object to repose)
> fundamentally unacceptable in principle.
>
> Saying "well only for issues that take four years to implement" doesn't
> really
> compromise on this. In fact, in practice, it is likely to be the most
> controversial
> and difficult issue that will take longest to move from ICANN's
> decision-in-principle
> to implementation in practice.
>
> Sorry, I really do wish I could say something else. I do wish we could
> indeed
> find something that would satisfy ICANN Legal as well as the community (or
> at
> least, all those who used public comment to object to this).
>
> But "repose" is an abuse of the deadline for filing, it isn't really a
> deadline for filing, it's a narrowing of standing. I don't think it's
> even within our powers, within the bylaws, to accept this proposal.
> And if it were, it would still dishonour the transition settlement idea
> of ICANN being held to account to its bylaws by any materially affected
> party.
>
> Malcolm.
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://www.linx.net/publicaffairs
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