[IOT] FW: Reviewing the consultation responses

Malcolm Hutty malcolm at linx.net
Fri Dec 7 07:09:21 UTC 2018

On 04/12/2018 22:08, avri doria wrote:
> Hi,
> Personally I would say:
> not option 3.
> On the other 2, I think that finding consensus (option 2) is the best
> option, though I do not know if we can.
> The one question I ask related to statutes of limitation if that the
> absence of one is usually reserved for the worst capital crimes and the
> like.  I do not believe that anything at ICANN reaches that level.  So I
> do wonder whether 3, 7 or 11 years or the like, i.e. something shorter
> than forever, can be agreed upon.


Nobody has proposed removing the deadline for filing. The Bylaws require
us to have one, based upon a certain amount of time after the claimant
became aware of the basis of claim.

In some civil trials, e.g. for torts, in some jurisdictions, it is
common to have a "statute of limitations" of three years. We have
decided upon a limit of 120 days.

So we're not talking about "forever" at all.

The Bylaws require that any materially affected party be able to bring a
qualifying dispute to be hear by the IRP. We have proposed that such
parties should have 120 days to do so, or forfeit that right. So I think
we are being quite strict on this point (you will see that some of the
responses to our most recent consultation still maintain we are being
too strict, even though we weren't inviting further comment on that issue).

The proposal from ICANN's Legal staff that they should be able to sit in
 "repose" is a demand that in some circumstances materially affected
parties should never have the right to challenge ICANN, no matter how
promptly they act. This is an abuse of the power to establish a deadline
for filing: under the pretext of setting a deadline, they are in fact
attempting to change the standing rule.

I recognise that some people might think that a standing rule granting
the right to be heard to "any materially affected party" is too broad.
It is certainly - and quite deliberately - broader than the rule that
applied before transition. But that question was settled as part of the
transition discussions.

The right for any materially affected party to access an enforcement
mechanism, in particular to enforce ICANN's mission limitation, rings
out through the CCWG Report as one of the core foundation pillars of the
transition settlement.

It is really important that we don't try to re-open or subvert what was
settled upon at transition, even if you disagree personally with what
was decided. The assurance that any materially affected party would have
access to an independent decision-maker with binding powers to determine
whether ICANN was acting consistently with its Bylaws and Articles was
absolutely central to the support of Non-Contracted stakeholders to
transition itself.

To renege on that now would be the most serious breach of trust.

Kind Regards,

            Malcolm Hutty | tel: +44 20 7645 3523
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