[IOT] IRP - IOT - Comments regarding retroactive applications

Tue May 2 18:18:00 UTC 2017

Dear members of the IRP IOT:

Here below is my suggestion for handing comments listed in our summary table as "Applied Retroactively to all Pending".

The public comments repository for the proposed rules can be accessed here<https://www.icann.org/public-comments/irp-supp-procedures-2016-11-28-en>.

This suggestion deals with these specific comments:

1.       From GNSO Business Constituency (BC Comment<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfO1LDGYUeOv.pdf>);

2.       From GNSO Intellectual Property Constituency (IPC Comment<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdft75S74tOev.pdf>); and

3.       From International Trademark Association (INTA Comment<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfyVMCP8h4dU.pdf>).

Summary of Comments:

1.       BC Comment (in part):

"We support the current draft of the USP, which does not permit the retroactive application of

supplementary procedures. Retroactive application of the new USP to existing IRPs would be inherently unfair to both of the parties involved in the IRP .... However, one issue that should be explicitly clarified in the scope section of the USP is what vintage of ICANN Bylaws will control for any IRP disputes pending at the time of adoption of the post-IANA transition bylaws. The BC strongly believes that the new Bylaws should control, as these provide a claimant with substantially improved rights."

2.       IPC Comment (in part):

"...in considering the question of whether the amended rules should have retroactive effect we ought to bear these aims [that IRP process should be transparent, efficient, accessible and designed to produce consistent and coherent results that will serve as a guide for future actions] in mind and deliver this increased accountability where possible, without re-opening matters which have already been dealt with. .... The implementing rules contained within the IRP Supplementary Procedures should therefore apply to any IRP arising from events which post-date the adoption of the revised Bylaws since that is the point at which all parties became bound. ... For matters covered by the IRP Supplementary Procedures which were left in the revised Bylaws to the discretion of the IOT, including matters relating to the timing to make a claim, conduct of hearings, and the availability of appeals, these new rules should apply to any IRP arising from events post-dating the adoption of the IRP Supplementary Procedures, but not to IRPs which are already underway at adoption."  [Underlined language in brackets above is not part of quoted language but is an attempt to paraphrase the "aims" referenced in the quote.]

3.       INTA Comment (in part):

We submit that the effective date of the USP should be October 1, 2016 which corresponds to the completion of the IANA Transition and the adoption of ICANN's new Bylaws. If the USP does not apply retroactively to the date the Bylaws took effect, there will be inconsistency between the Bylaws and the rules of procedure governing IRPs commenced prior to the USP effective date. Furthermore, to the extent that the USP may be said to represent ICANN's present policy regarding fairness and due process, this could undermine confidence in proceedings governed by the old procedural rules. INTA recommends that for any IRP commenced after the date the new bylaws became effective and before the date the USP becomes effective, there be a mechanism whereby one or more parties to the proceeding may ask for the USP to govern the proceeding, provided there is no material disadvantage to any party's substantive rights.

Draft USP Rule:

The draft rule being commented upon is section 2. Scope. (The USPs are here<https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf>.) Section 2 currently provides:

The ICDR will apply these Updated Supplementary Procedures, in addition to the ICDR RULES, in all cases submitted to the ICDR in connection with Article IV, Section 4.3 of the ICANN Bylaws after the date these Updated Supplementary Procedures go into effect. In the event there is any inconsistency between these Updated Supplementary Procedures and the ICDR RULES, these Updated Supplementary Procedures will govern. These Updated Supplementary Procedures and any amendment of them shall apply in the form in effect at the time the request for an INDEPENDENT REVIEW is commenced.

IRPs commenced prior to the adoption of these Updated Supplementary Procedures shall be governed by the Supplementary Procedures in effect at the time such IRPs were commenced.

In the event that any of these Updated Supplementary Procedures are subsequently amended, such amendments will not apply to any IRPs pending at the time such amendments come into force unless a party successfully demonstrates that application of the former Supplementary Procedures would be unjust and impracticable to the requesting party and application of the amendments would not materially disadvantage any other party's substantive rights. Any party to a then-pending IRP may oppose the request for application of the amended Supplementary Procedures. Requests to apply updated amended supplementary procedures will be resolved by the IRP PANEL in the exercise of its discretion.

Our IRP IOT role:

As we do our work we are instructed by the bylaws, among other things, to provide rules that will facilitate the "just resolution of disputes" (Bylaw Section 4.3(a)(vii)) and ensure "fundamental fairness and due process" (Bylaw Section 4.3(n)(iv)).

My recommendations (as participant, not as lead):

1.       I recommend against making the substantive bylaw provisions that became effective Oct. 1, 2016, applicable to IRPs filed prior to that date.

That sort of retroactivity seems well beyond the scope of "procedural" rules. In my opinion, had the CCWG Accountability wished for such a result it would have directly discussed it and presented the matter explicitly to the board - actions which it did not do.

2.       With respect to the retroactive application of the new rules to IRPs now pending and filed on or after Oct. 1, 2016, I recommend that we insert a provision allowing a party to request the panel hearing the case to decide this as a matter of discretion. We should add a standard for the panel in reviewing such requests, specifically that unless all parties consent it shall not allow new rules to apply to pending cases if that action would work a substantial unfairness or increase in costs to any party or otherwise be unreasonable in the circumstances.

Differing views:

If you have a concern with what I propose or have another suggestion please make it on list as soon as possible and as specifically as possible. Please couch it in terms/language that can be acted upon as a decision if adopted (i.e. in language that would be a sufficient instruction to our outside lawyers that they could draft appropriate language).

Best regards,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/iot/attachments/20170502/e697091c/attachment-0001.html>