[IOT] Joinder issue - revised proposal for First reading

[Malcolm Hutty]

David,

In regard to the added sentence, requiring interveners to be persons that would qualify as a Claimant.

I think there may be a concern with this text. It assumes that the person wishing to intervene would be doing so on the side of the Claimant. However, a person may wish to intervene to oppose the Claimant’s position. Such a person might not qualify as a Claimant, but would still have a material interest. Indeed, in the counterfactual where ICANN had done what the Claimant claims it ought to have done, the intervener might then qualify as a Claimant. I think such a person has a good reason to say they ought to be heard.

Beyond that, (and as an additional point on which the foregoing does not depend), the outcome from an IRP need not be binary. That is, if ICANN has done A, of which the Claimant complains, it is possible that it ought to have done B, C or D; even if the Claimant says B, the IRP could decide C. An intervener might be indifferent as between A or B but be strongly interested in it not being C. Again, such an intervener might be someone who does not qualify as a Claimant given A, but would have done if ICANN had done C. Such a person might well wish to intervene to argue against C as a possible resolution. I say this only to point out that it’s not really about which side you’re on, but whether you have a material interest in any of the reasonably foreseeable possible outcomes of the IRP case. 

Malcolm 

Sent from my iDevice; please excuse terseness and typos.

> On 3 Oct 2017, at 11:00, McAuley, David via IOT <iot at icann.org> wrote:
> 
> Dear members of the IRP IOT,
>  
> I am hoping we can move the issue of Joinder to successful first reading at our meeting Thursday, Oct. 5th, at 19:00 UTC. In order to allow those who cannot attend a chance to weigh in I will not move this to first reading (should we agree on this) until Monday, Oct. 9. Please comment by then if you have a concern.
>  
> The suggested language for Joinder is below, with underlined language (also in red) to reflect a change requested by Sam and written up by me. Only paragraph 2 has been changed.
>  
> My summary can be seen in my email of Aug. 25 and Sam’s requested addition can be seen in her  email of Sept. 7.
>  
> SUGGESTED JOINDER LANGUAGE:
>  
> 1.      That only those persons/entities who participated in the underlying proceeding as a "party" receive notice from a claimant (in IRPs under Bylaw section 4.3(b)(iii)(A)(3)) of the full Notice of IRP and Request for IRP (including copies of all related, filed documents) contemporaneously with the claimant serving those documents on ICANN.
>  
> 2.      That, subject to the following sentence, all such parties have a right to intervene in the IRP.  Notwithstanding the foregoing, a person or entity seeking to intervene in an IRP can only be granted “party” status if that person or entity demonstrates that it meets the standing requirement to be a Claimant under the IRP at Section 4.3(b) of the ICANN Bylaws and as Defined within these Supplemental Procedures. The timing and other aspects of intervention shall be managed pursuant to the applicable rules of arbitration of the ICDR except as otherwise indicated here. Subject to the preceding provisions in this paragraph, the manner in which this limited intervention right shall be exercised shall be up to the PROCEDURES OFFICER, who may allow such intervention through granting IRP-party status or by allowing such party(ies) to file amicus brief(s), as the PROCEDURES OFFICER determines in his/her discretion. An intervening party shall be subject to applicable costs, fees, expenses, and deposits provisions of the IRP as determined by the ICDR. An amicus may be subject to applicable costs, fees, expenses, and deposits provisions of the IRP as deemed reasonable by the PROCEDURES OFFICER.
>  
> 3.            No interim relief that would materially affect an interest of any such amicus to an IRP can be made without allowing such amicus an opportunity to be heard on the requested relief in a manner as determined by the PROCEDURES OFFICER.
>  
> 4.      In handling all matters of intervention, and without limitation to other obligations under the bylaws, the PROCEDURES OFFICER shall endeavor to adhere to the provisions of Bylaw section 4.3(s) to the extent possible while maintaining fundamental fairness.
>  
> Thank you and best regards,
> David
>  
> David McAuley
> Sr International Policy & Business Development Manager
> Verisign Inc.
> 703-948-4154
>  
> _______________________________________________
> 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/20171003/81c6ff4f/attachment-0001.html>