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

[Malcolm Hutty]

On 2017-06-11 19:48, Greg Shatan wrote:
> 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?

A concrete illustration was offered in my own public comment submission.
See pages 6-7 of:
https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfXivMZALCn3.pdf

This demonstrates a claimant being denied a hearing on a claim where 
they
have suffered a concrete loss of their investment as a result of what is
(in their allegation) an ultra vires action by ICANN. A clear example of 
concrete harm.

The replies I have heard to this example have taken one of two forms, 
either (a) "ICANN
would never do this", or (b) "Someone else would have stopped ICANN from 
doing
this". In my view, while we hope for that, the IRP exists to provide a 
remedy for
the case where ICANN *does* do something it shouldn't, and nobody does 
stop it.
This remedy shouldn't be needed often, but to say it isn't needed at all 
denies
the very purpose of the IRP.

ICANN Legal has also been asked for their view of a concrete harm they
think would arise if their view is not preferred. Elizabeth Le response 
to this
challenge on behalf of ICANN Legal can be found here:

http://mm.icann.org/pipermail/iot/2017-May/000217.html

By contrast, my interpretation of Elizabeth's post is that it doesn't 
actually disclose
any concrete harm, only more argument. But their words are there for you 
to read.


> 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.

Well put.

I think it is time to give this a second reading.

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