[IOT] On elements of an IRP claim

Tue Apr 10 18:41:18 UTC 2018

Thank you Kavouss for these thoughtful suggestions.

I am tied up right now but will give these some thought and react to them later this week. And we can also discuss on next call – but I will respond soon.

Best wishes,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154

From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
Sent: Tuesday, April 10, 2018 10:00 AM
To: McAuley, David <dmcauley at Verisign.com>
Cc: iot at icann.org; aloup at usc.edu
Subject: [EXTERNAL] Re: [IOT] On elements of an IRP claim

Dear David,

Thank you very much for your message.

Good catch .These elements are In fact missing or not  currently clearly indicated

I reply as follows:

1. Do we need to refer the IOT bindings to public comment

My insight is yes unless unaninously/ full consens  decided otherwise

2. What are the relevant elements.

2.I suggest you keep what are currently available in standard International Arbitration Rules of the ICDR  for  inclusion in a Notice a demand that the dispute be referred to arbitration; you may delete with revision marks those irrelevant or ....

2.2 add what you proposed

2.3 I add another element to your suggested item

as follows :

A REFERNCE TO ANY SIMILAR CLAIMS ALREADY SUBMITTED  TOGETHER THE RESULTING DECISION

3.Post them on the list for a week

4. Comeback with suggestions from IOT member to add . delete or modify

5. Take up the compilation

6.Discuss them at our next meeting

7.kAVOUSS

1.
2.
3.
4.
5.      the names, addresses, telephone numbers, fax numbers, and email addresses of the parties and, if known, of their representatives;
6.
7.
8.
9.
10.     a copy of the entire arbitration clause or agreement being invoked, and, where claims are made under more than one arbitration agreement, a copy of the arbitration agreement under which each claim is made;
11.     a reference to any contract out of or in relation to which the dispute arises;
12.     a description of the claim and of the facts supporting it;
13.     the relief or remedy sought and any amount claimed; and
14.     g. optionally, proposals, consistent with any prior agreement between or among the parties, as to the means of designating the arbitrators, the number of arbitrators, the place of arbitration, the language(s) of the arbitration, and any interest in mediating the dispute.f Arbitration. that includes

On Tue, Apr 10, 2018 at 3:32 PM, McAuley, David via IOT <iot at icann.org<mailto:iot at icann.org>> wrote:

   Dear members of the IRP IOT,

   As mentioned, I want to run an idea on this list about treatment of elements of an IRP claim.

   It is a matter we have not yet specifically addressed as part of the supplementary rules - the ‘required elements of a Claim.’

   Bylaw 4.3(n)(iv)(C) says as follows:

   (iv) The Rules of Procedure are intended to ensure fundamental fairness and due process and shall at a minimum address the following elements:

                   …

   (C) Rules governing written submissions, including the required elements of a Claim, other requirements or limits on content, time for filing, length of statements, number of supplemental statements, if any, permitted evidentiary support (factual and expert), including its length, both in support of a Claimant's Claim and in support of ICANN's Response;

   Keeping in mind that our task is to create ‘supplementary’ rules, it is worth noting that the standard International Arbitration Rules of the ICDR address the particulars that need to be stated in a Notice of Arbitration. They include:

   a.   a demand that the dispute be referred to arbitration;
   b.   the names, addresses, telephone numbers, fax numbers, and email addresses of the parties and, if known, of their representatives;
   c.   a copy of the entire arbitration clause or agreement being invoked, and, where claims are made under more than one arbitration agreement, a copy of the arbitration agreement under which each claim is made;
   d.   a reference to any contract out of or in relation to which the dispute arises;
   e.   a description of the claim and of the facts supporting it;
   f.   the relief or remedy sought and any amount claimed; and
   g.   g. optionally, proposals, consistent with any prior agreement between or among the parties, as to the means of designating the arbitrators, the number of arbitrators, the place of arbitration, the language(s) of the arbitration, and any interest in mediating the dispute.

   These are not an exact fit for IRP, and of course some are inapplicable to IRP (e.g., an amount claimed).

   (The current supplementary rules for IRP<https://www.icdr.org/sites/default/files/document_repository/Supplementary_Procedures_ICANN_Independent_Review_Process.pdf> – those in effect now, not the ones we are drafting for the new IRP – don’t specifically deal with ‘elements’ although Section 5 (Written Statements) presumably covers the topic.)

   I propose that we add a section on elements to the draft supplementary rules. This seems to me to be an administrative task that would not need to be subject to community comment.

   I am asking for you feedback then on two issues:

   1.   Can my suggested addition (below) be added to the Updated Supplementary Procedures without public comment; and
   2.   Is the language below acceptable to you?

   Here is what I suggest for elements:

   That we add a new section under the definition of DISPUTES in section 1. Definitions in the draft Updated Supplementary Procedures<https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf> as follows:

   (D)  A written statement of a DISPUTE shall contain at least the following information:

   1.   A demand that the DISPUTE be referred to Independent Review pursuant to Bylaw section 4.3 (or Annex D, Section 4.2 for Empowered Community claims);
   2.   a reference to any ICANN contract, ICANN policy, ICANN action or inaction, or decision by a process-specific expert panel out of or in relation to which the DISPUTE arises; and
   3.   a description of the claim and the facts supporting it and how such contract, policy, action or inaction, or decision violate(s) ICANN’s Articles of Incorporation or Bylaws;

   These elements don’t address PTI service complaints or IANA Naming Functions contract complaints, but we can address that when the IOT later addresses any ‘specialized’ rules noted in Bylaw 4.3(n)(ii).

   Please weigh in on list.

   Thank you and best regards,

   David

   David McAuley

   Sr International Policy & Business Development Manager

   Verisign Inc.

   703-948-4154

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