[IOT] Trying to coordinate Joinder comments

Thu May 11 13:35:16 UTC 2017

On 11/05/2017 13:45, McAuley, David wrote:
> Thanks Malcolm, fair point - we can discuss on call.
> 
> My initial reaction is to agree but to keep the point I was making to
> some extent - because that section of bylaw deals with abusive or
> frivolous claim or defense - which presumably includes an argument by
> amici.
> 
> Maybe we could narrow this to allow cost shifting "to the extent"
> that ICANN incurs cost to defend against an amici argument that is
> found by the panel to be abusive or frivolous.

> Let's discuss.

I may not be able to make tonight's call, so I'm going to make my
contribution now.

You assume the amicus would be briefing against ICANN? I'm not so sure.

I would say that the potentially chilling effect of such a provision
more than outweighs the benefit from dissuading frivolous amicus
intervention, not least because I don't see much harm done.

There's a real difference between bringing a frivolous case and making a
frivolous intervention.

A case must be answered, if only to defend against a default judgement.

If ICANN considers the amicus brief to add nothing substantive that's
new, it can simply ignore it.

And, as I said before, an amicus isn't really on either side. Even if an
amicus does criticise or oppose one aspect of ICANN's argument, that
doesn't necessarily amount to a view that the claimant should prevail.

I would be concerned that cost shifting would simply dissuade public
interest parties from contributing to the process, because they couldn't
stand the cost if it occurred.

To be honest, I worry that cost shifting even against a claimant might
have a chilling effect that is worse than what it brings in terms of
dissuasion. But that's where we ended up in the bylaws, a compromise.
Extending it to amici I think is taking it too far.

Malcolm.

> 
> And again, thank you and,
> 
> Best wishes, David
> 
> David McAuley Sr International Policy & Business Development Manager 
> Verisign Inc. 703-948-4154
> 
> -----Original Message----- From: Malcolm Hutty
> [mailto:malcolm at linx.net] Sent: Thursday, May 11, 2017 7:29 AM To:
> McAuley, David <dmcauley at Verisign.com>; iot at icann.org Subject:
> [EXTERNAL] Re: [IOT] Trying to coordinate Joinder comments
> 
> Dear David,
> 
> I think your proposal on amici needs a little refinement, rather than
> simply applying 4.3(r) to amici.
> 
> 4.3(r) says that parties shall generally bear their own costs, but
> that the IRP panel may shift costs to the losing party.
> 
> I agree that amici should bear their own costs. I do not believe
> amici should be exposed to share in the costs in the event of cost
> shifting if they support the losing side, nor should they benefit
> from a share in the costs that are shifted if they are on the winning
> side.
> 
> For that matter, an amicus brief may not obviously be tied to other
> "side". Amicus briefs can be purely informational, and they can often
> support or oppose one aspect of a party's position (or the question
> at issue) without taking any view on the core of the case or who
> should prevail.
> 
> But even for amicus briefs that do clearly support one side, I think
> they should be exempted from cost-shifting either to their benefit or
> to their detriment.
> 
> Kind Regards,
> 
> Malcolm.
> 
> On 03/05/2017 21:21, McAuley, David via IOT wrote:
>> Dear members of the IRP IOT,
>> 
>> 
>> 
>> For our call tomorrow at 19:00 UTC.
>> 
>> 
>> 
>> Attached are two brief slides with my thoughts on trying to
>> coordinate disparate joinder comments.
>> 
>> 
>> 
>> Slide two mentions bylaw section 4.3(s) - which states this: "(s)
>> An IRP Panel should complete an IRP proceeding expeditiously,
>> issuing an early scheduling order and its written decision no later
>> than six months after the filing of the Claim, except as otherwise
>> permitted under the Rules of Procedure. The preceding sentence does
>> not provide the basis for a Covered Action."
>> 
>> 
>> 
>> And mentions bylaw 4.3(r) - which says this: "(r) ICANN shall bear
>> all the administrative costs of maintaining the IRP mechanism,
>> including compensation of Standing Panel members. Except as
>> otherwise provided in Section 4.3(e)(ii), each party to an IRP
>> proceeding shall bear its own legal expenses, except that ICANN
>> shall bear all costs associated with a Community IRP, including the
>> costs of all legal counsel and technical experts. Nevertheless,
>> except with respect to a Community IRP, the IRP Panel may shift and
>> provide for the losing party to pay administrative costs and/or
>> fees of the prevailing party in the event it identifies the losing
>> party's Claim or defense as frivolous or abusive."
>> 
>> 
>> 
>> 
>> 
>> Best regards
>> 
>> David
>> 
>> 
>> 
>> David McAuley
>> 
>> Sr International Policy & Business Development Manager
>> 
>> Verisign Inc.
>> 
>> 703-948-4154
>> 
>> 
>> 
>> 
>> 
>> _______________________________________________ IOT mailing list 
>> IOT at icann.org https://mm.icann.org/mailman/listinfo/iot
>> 
> 
> 
> -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs |
> Read the LINX Public Affairs blog  London Internet Exchange |
> http://publicaffairs.linx.net/
> 
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> 
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> 

-- 
            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
           Monument Place, 24 Monument Street London EC3R 8AJ

         Company Registered in England No. 3137929
       Trinity Court, Trinity Street, Peterborough PE1 1DA