[IOT] Preparation for tonight's call on timing issue

[Malcolm Hutty]

Dear all,

On the IOT call tonight we will return again to the issue of the limit
of time for filing an IRP claim.

Last call we made significant progress on this issue. We agreed by
consensus to reject the proposal by the Business Constituency and by the
ISPCP to introduce a moratorium on introducing new timing rules, pending
significant study of the likely effect.

We also agreed, by consensus and compromise, to settle on a limit for
filing of 120 days after the claimant was aware of the harm that they
had suffered, or when the claimant ought reasonably to have been aware
of the harm, if that is sooner. We agreed to leave precise wording to
our independent counsel to implement this agreement in principle.

Both of the above are real progress.

I thought we came close to agreeing not to adopt a "statute of repose",
an outside date at which ICANN would be immune any possibility of
challenge. However Sam Eisner asked that we keep this issue open for
further discussion on tonight's call.

In preparation for that discussion, I have at the end of this e-mail
provided excerpts of the comments from those responding to the public
comment period on this issue.

As you can see from those extracts, they are both overwhelmingly opposed
to having a statute of repose in principle, and also give a high level
of importance to this issue. Opposition is also spread across a broad
range of respondents, commercial and non-commercial organisations,
intellectual property interests and network operators, individuals and
large entities.

Perhaps even more important, though, is the opinion of our independent
legal Counsel, who says that the statute of repose is incompatible with
the Bylaws that have just been adopted to ensure ICANN's accountability.

Sidley writes:
"Applying a strict 12-month limit to any IRP claim that commences at the
time of the ICANN action or inaction and without regard to when the
invalidity and material impact became known to the claimant, is
inconsistent with the Bylaws (and is inconsistent with the terms of
Annex 7 of the CCWG Report)." (page 4, letter of January 4, 2017).

Given the combination of overwhelming opposition from the public comment
to a statute of repose, and the professional opinion of our Counsel that
such a repose is inconsistent with by the Bylaws and the CCWG's Final
Report on WS1, I will this evening ask your support for dropping this
issue and proceeding on the basis of the timing rule as agreed at the
last meeting.

If we are able to agree the above, there are still five items still to
address. You can see these in my slides for the last meeting, but to
recap briefly:

- a proposal that we exclude days spent in mediation from the count of
days towards the deadline;

- a proposal that we are explicit that we mean calendar days;

- a proposal that we start the count of days from the date that
translated documents are available;

- a proposal that we grant the IRP Panel a discretionary power to hear
claims filed after the deadline in certain circumstances;

- a proposal that the effectiveness of the timing rule be reviewed after
a set period.

Personally, I do not see these as complicated issues, so I would like us
to be ambitious and seek to achieve consensus on them all this evening.

Kind Regards,

Malcolm.

EXCERPTS FROM PUBLIC COMMENTS RECEIVED


Sullivan:
"Time limits for correcting an error in policy does not make sense.
There should be no time limit for correcting an error. So if any problem
arises in the future and time has elapsed then we all have to live with
the problem because you implemented a time limit."

Hill:
"And obviously people who are affected by a specific decision based on a
policy will be informed of the decision. So in that case the time bar
should start to run from the time of notification of the decision."

Rosenzweig and Schaeffer:
"We believe this proposal improperly limits the ability of claimants to
challenge alleged Board Bylaw violations and divests the internet
community of a valuable tool for restraining Board behavior. As a
result, we think the proposal should be modified to a pure discovery
rule by striking the last clause establishing an outside time limit of
12 months.
[...]
Indeed, this seemingly procedural provision may have critical practical
consequences. The IRP process in intended to be the principal means of
countering the potential for ICANN mission creep. And the constrained
mission is seen as the single most significant innovation of the
Accountability process. The ability of the IRP to act as a check on
mission creep is critically weakened by a time‐constrained IRP because a
Board decision’s impact on the mission may not be become evident until
after implementation and application in future circumstances."

CCG Delhi:
"However, barring all claims after one year of the action or inaction is
extremely problematic.
"It should also be noted that arbitral institutions do not usually
impose time limits on the submission of a claim. A survey of leading
arbitral institutions such as the International Chamber of Commerce, the
London Court of International Arbitration and the Stockholm Chamber of
Commerce suggests that this is not a common practice."
[citations supplied]


NCSG:
"This is an extraordinary loophole"
"But the time limits make no sense at all when applied to disputes over
consensus policies that are alleged to transgress mission limitations.
The mission limitations are meant to protect fundamental individual
rights, and to permanently constrain ICANN’s mission. They are not
matters of expediency and are not time-dependent. If a policy allows
ICANN to expand its mission beyond its intended remit, the actions it
takes under that policy should be subject to challenge at any time."

DotMusic:
"Furthermore, there should be no statue of repose. [...]
The imposition of a statute of repose encourages non-transparent
behavior. If ICANN can prevent Claimants from learning about its actions
or inactions for 12 months then Claimants cannot commence an IRP against
ICANN."

BC:
"It is imperative that ICANN recognize and act upon our strenuous
objection to the proposed statues of limitations in the Updated
Supplementary Procedures prior to their adoption. The proposed limits
are unfair, inconsistent with international arbitration norms, and may
create substantial concerns around the legitimacy of ICANN as a
standalone, multi-stakeholder model organization."

LINX:
"The 12 month fixed limit from the date of the action is not merely too
short, butmiscalculated. The timing rule should be based on the date of
knowledge of the harm that ICANN’s action gave rise to, rather than
calculated from the date of the action itself. To do otherwise would
unjustly exclude important cases from being heard by the IRP.
[...]
Both these flaws are serious, but it is the latter that we consider
catastrophic. The effect of the latter will be to seriously undermine,
and in many cases utterly negate, the enforceability of the Mission
limitation that was a key commitment by ICANN in the 2016 transition.
The seriousness of this commitment is shown by statements in the bylaws
promising ICANN’s accountability as enforced through an accessible,
transparent and just resolution of dispute by the Independent Review
Process."


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