[IOT] Confirming that IRP Qualifies as an Arbitration that can be enforced by Courts

[Bernard Turcotte]

​Greg,

I hope the following is useful wrt your questions - From the ICANN Bylaws
we have:

Section 4.3. INDEPENDENT REVIEW PROCESS FOR COVERED ACTIONS

(f) ICANN hereby waives any defenses that may be afforded under Section 5141
of the California Corporations Code (“CCC”) against any Claimant, and shall
not object to the standing of any such Claimant to participate in or to
compel
an IRP, or to enforce an IRP decision on the basis that such Claimant may
not otherwise be able to assert that a Covered Action is ultra vires.

.....


(x) The IRP is intended as a final, binding arbitration process.

(i) IRP Panel decisions are binding final decisions to the extent allowed
by law unless timely and properly appealed to the en banc Standing
Panel. En banc Standing Panel decisions are binding final decisions to
the extent allowed by law.

(ii) IRP Panel decisions and decisions of an en banc Standing Panel upon
an appeal are intended to be enforceable in any court with jurisdiction
over ICANN without a de novo review of the decision of the IRP Panel
or en banc Standing Panel, as applicable, with respect to factual
findings or conclusions of law.

(iii) ICANN intends, agrees, and consents to be bound by all IRP Panel
decisions of Disputes of Covered Actions as a final, binding arbitration.

(A)Where feasible, the Board shall consider its response to IRP Panel

decisions at the Board's next meeting, and shall affirm or reject

compliance with the decision on the public record based on an

expressed rationale. The decision of the IRP Panel, or en banc

Standing Panel, shall be final regardless of such Board action, to the

fullest extent allowed by law.


(B)If an IRP Panel decision in a Community IRP is in favor of the EC,

the Board shall comply within 30 days of such IRP Panel decision.


(C)If the Board rejects an IRP Panel decision without undertaking an

appeal to the en banc Standing Panel or rejects an en banc Standing

Panel decision upon appeal, the Claimant or the EC may seek

enforcement in a court of competent jurisdiction. In the case of the EC,

the EC Administration may convene as soon as possible following

such rejection and consider whether to authorize commencement of

such an action.


Cheers

B.

On Fri, May 26, 2017 at 12:25 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> All,
>
> This is the question I was going to raise on the last call, but we ran out
> of time.
>
> This question may already have been answered, but I think it is important
> to confirm that the "new and improved" IRP can be enforced in courts.  This
> is a critical feature of the Accountability mechanisms.
>
> The old IRP was not capable of being enforced, because it was not binding
> (one of several defenses against enforcement of an arbitral award); there
> may have been other reasons, but I don't know them.
>
> The new IRP is binding, so that issue is resolved.  However, I don't
> recall whether we got an opinion (from Jones Day, Sidley or Adler & Colvin)
> that the IRP now meets all criteria for enforceability under applicable
> laws (at a minimum the Cal Arbitration Act, the Fed Arb Act, and the 2-3
> leading international Conventions relating to arbitral awards).  This would
> include affirming that the common defenses would not be available
> (recalling that "non-binding nature" is a defense to be raised by the party
> not enforcing the award, rather than a requirement placed on the filing
> party).
>
> If we have an opinion (formal or otherwise) of counsel and someone could
> point me to it that would be great.
>
> Lastly, we need to have counsel confirm that our rules do not
> inadvertently remove the IRP from enforceability or provide defenses that
> the non-enforcing party can raise.
>
> Greg
>
>
> _______________________________________________
> IOT mailing list
> IOT at icann.org
> https://mm.icann.org/mailman/listinfo/iot
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/iot/attachments/20170526/a4a71f9a/attachment-0001.html>