[IOT] IOT Timing-Repose Issue

[Malcolm Hutty]

On 2017-05-11 07:55, Elizabeth Le wrote:
> Here are some thoughts from ICANN regarding the statute of repose
> issue and, in particular, how the lack of a time limit could impact
> ICANN and the broader ICANN community:
> 
> The IRP IOT is discussing the issue of “repose,” which is has two
> components:
> 
>  	* How long after a person is aware (or reasonably should have been
> aware) of a harm caused by an act of ICANN that was taken in
> contradiction to the Bylaws or Articles; and
> 	* How long of a period of time, in total, should pass before it is no
> longer reasonable for a person to claim they became aware of an action
> of ICANN that they alleged caused them harm?


I could provide a point-by-point rebuttal, and if Liz and Sam would
appreciate the courtesy I would be happy to do so (not least because I
have already written it) but I fear others on this list would find it
tiresome.

So for now I will simply say that I disagree with much of what Liz has
set out in her lengthy e-mail, and that I note that it does not actually
disclose any actual, identifiable problems that would result from the
120 day rule, only a difference of preference on approach.

I think it is vitally important that no claim should be struck out by
reason of being too late before it was even possible to file it. A
person has to be "materially affected" to file a claim: they cannot be
too late before they have been materially affected.

Any rule that would have the effect of striking out the claim before it
was possible to bring it is not in truth a deadline for filing, it is a
covert attempt to rewrite (and narrow) the rules on standing set out in
the bylaws.

That cannot be right, nor is it within our power. We must act
consistently with the bylaws.

In a desperate attempt to draw a line under this, I would like to make a
last attempt at a compromise, based on Liz's opening statement above:

* add a presumption that it is not reasonable for a person to claim that
they only became aware of the harm more than a year after the date they
suffered it, and so became eligible to file the claim.

I hope this is acceptable to ICANN Legal.

If, on the other hand, ICANN Legal cannot be satisfied unless some
classes of claim are immunised from ever being heard, irrespective of
how promptly the claimant reacts to the harm they have suffered, then I
think we must respectfully reject their position. To do otherwise would
fundamentally dishonour both the bylaws and the transition settlement.

Malcolm.

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            Malcolm Hutty | tel: +44 20 7645 3523
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