[IOT] memo referred to on last call [re-titled]

[McAuley, David]

Dear members of the IRP IOT,



On the call yesterday, in our discussion of assistance to SOs/ACs in preparing to exercise their roles vis-à-vis establishment of the standing panel, I mentioned an email memo that I had sent to the ccNSO Guidelines Review Committee (in which I participate) regarding IRP implications for SOs - and undertook to forward a copy to our group for disclosure purposes.



The email memo is below.



Best regards,



David



David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154



From: ccnso-grc-bounces at icann.org [mailto:ccnso-grc-bounces at icann.org] On Behalf Of McAuley, David via ccnso-grc
Sent: Sunday, May 07, 2017 1:05 PM
To: kimberly.carlson at icann.org; ccnso-grc at icann.org
Subject: [EXTERNAL] Re: [ccnso-grc] REMINDER: GRC call | 8 May @12:00 UTC



Dear members of the Guideline Review Committee:



Item #5 on our agenda for tomorrow's call is "IRP next steps, if any."



As you know, the ccNSO (along with other SOs and ACs) has a role in nominating members to the IRP standing panel.



I lead the IRP Implementation Oversight Team<https://community.icann.org/pages/viewpage.action?pageId=59643726>. We on the IOT have indicated that we will assist in this endeavor as best we can.



To that end, I raised the matter some time ago with ICANN Legal and they in turn have contacted ICANN policy team members who are apparently now in the process of reaching out to SOs and ACs in an effort to ensure widespread knowledge of this role and preparations to carry it out. One thing under consideration (not yet confirmed) is to conduct webinar(s) in this respect.



In the meantime, in this memo I will note each provision in Bylaw Section 4.3 ("Independent Review Process for Covered Actions") that may touch SOs and ACs. These will be the substantive points around which we can build a new process if we wish.



a.       Under Section 4.3(b)(i) each SO can become an IRP Claimant and ICANN cannot object to an SO's standing to bring a claim. NOTE - under Section 4.3(x)(iv), by submitting an IRP claim, a claimant agrees that the IRP decision is intended to be a final, binding arbitration decision. Any claimant that does not consent to the IRP being final may initiate a non-binding IRP - IF ICANN agrees - but such a non-binding IRP decision would not be enforceable.



b.      The Empowered Community can likewise bring claims without objection to standing by virtue of the same section.



c.       Under Section 4.3(c)(i), the IRP cannot hear challenges by the EC to the results of an SO PDP unless the SO that approved the PDP support's the EC's challenge.



d.       Under Section 4.3(c)(ii), the IRP cannot hear challenges to delegation/redelegation of ccTLDs.



e.      Under Section 4.3(e), an SO (or any other claimant other than the EC) bringing an IRP claim is strongly encouraged to engage in a cooperative engagement process to try to resolve the dispute. Failure to participate in good faith could lead to incurring ICANN's costs if the claimant loses (see Section 4.3(e)(ii)). [Another Work Stream 2 subgroup is tasked with developing rules for Cooperative Engagement Process.]



f.        Under Section 4.3(h), an SO as an IRP claimant should participate in conciliation discussions with ICANN in an attempt to narrow the issues.



g.       Under Section 4.3(j)(ii), SOs will help establish a standing panel of IRP panelists:



o   Consult with ICANN, ACs, and the IOT to seek admin support for IRP (Section 4.3(j)(ii)(A));



o   Work with ACs and the ICANN Board to identify and solicit applications from well qualified candidates and then vett the applications (Section 4.3(j)(ii)(B));



o   SOs and ACs to nominate the panelists (subject to ICANN Board approval, not to be unreasonably withheld) (Section 4.3(j)(ii)(C));



o   Panelist qualifications are referred to in Sections 4.3(j)(i); 4.3(j)(iv); and 4.3(q).



h.      An SO bringing an IRP claim will have to understand and abide by the rules of procedure of the IRP support organization (currently ICDR) as supplemented by the IOT-developed supplementary procedures. (See Sections 4.3(g), 4.3(k)(ii) - under which an SO claimant will have to pick one panelist from the standing panel to serve as one of three panelists on the case - and 4.3(n)).



i.         AN SO as claimant will be able, if it chooses, to seek interim relief (including an injunction) from an IRP panel under Section 4.3(p) to prevent harm for which there would be no adequate remedy.



j.         Section 4.3(r) indicates that each claimant shall bear its own legal expenses - and may incur other costs if the panel decides that its claim was frivolous or abusive. (However, Section 4.3(y) says that ICANN shall eek to establish means by which community (and some other) claimants can meaningfully participate in and have access to the IRP process.)



k.       Section 4.3(w) permits an appeal of an IRP panel decision to the full standing panel if filed within 60 days of the IRP panel's issuance of the decision.



l.         Section 4.3(x) gives a claimant a right to seek enforcement in a competent court if ICANN fails to abide by a final IRP decision.



I look forward to our call tomorrow. Meantime, best wishes,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154



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