[IOT] IOT Timing-Repose Issue

[Greg Shatan]

I largely agree with Malcolm on this point, and if we want to explore it in
more depth, I'm happy to do so.

Greg


*Greg Shatan *C: 917-816-6428
S: gsshatan
gregshatanipc at gmail.com


On Wed, May 17, 2017 at 1:13 PM, Malcolm Hutty <malcolm at linx.net> wrote:

> 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.
>
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://www.linx.net/publicaffairs
>
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