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

[McAuley, David]

Fair questions from Greg, good information pointed to by Bernie – I think we might pose the questions in the nature of “just to confirm …” when we ask Sidley to start rewriting rules in light of our work.



I assume we are ok on arbitration questions since both Sidley and Adler knew that was our goal, enforceable decisions. But good to check, especially on whether any of the new rules inadvertently takes us outside that scope.



David



David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154



From: iot-bounces at icann.org [mailto:iot-bounces at icann.org] On Behalf Of Bernard Turcotte
Sent: Friday, May 26, 2017 1:36 PM
To: Greg Shatan <gregshatanipc at gmail.com>
Cc: iot at icann.org
Subject: [EXTERNAL] Re: [IOT] Confirming that IRP Qualifies as an Arbitration that can be enforced by Courts



​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<mailto: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


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