[IOT] [TRUNCATED LIST] Re: [Ext] Re: [CORRESPONDENCE] Cherine Chalaby to David McAuley - Interim Supplementary Rules for the IRP

Tue Oct 23 14:41:57 UTC 2018

Dear Malcolm, 

The recent records of the IOT do not support your statement that you would only support the Interim Procedures without the "incompatible" subclause.  Instead, the record supports your (1) reservation of your continued objection; and (2) agreement that the interim rules could proceed so long as ICANN's commitment to make future transition arrangements was included in the Interim Procedures.  [Note, that commitment was already in a footnote and remains in there]

The record is below.

The Transcript for 9 October reads:

DAVID McAULEY:  Okay thanks.
Let me go ahead and read time for filing.  Rule number 4 is the next one up.  An independent review is commenced with a claimant files a written file of dispute a claimant should file a written statement of dispute no more than 120 days after the claimant becomes materially aware of the effect or in effect of arise to a dispute.  The may not be filed 12 months from the date of such action or inaction in order for an IRP to be deemed to be timely filed all fees should be paid to ICDR within 3 business days as measured by the ICDR in filing with request with ICDR.

I mentioned at the top that I would note that we have discussed and agreed, not the actual words but we agreed to the concept of a safe harbor here and if I'm not mistaken the concept of a safe harbor is while these interim    while these interim rules are applicable, the second part of this two part timing limitation, that is the 12 month limitation, would note apply so that no ones prejudiced while we are trying to sort out what we call the issue of repose.

And so, that is my understanding of where we are on this rule.  And I see Malcolm's hand is up.  I'll give the hand to Malcolm and    so Malcolm please take over. 

>> MALCOLM HUTTY:  Thank you David.  Your handling this meeting in an especially formal manner so I feel it's important I respond accordingly with a formal statement on this point.  I'm always on record of having said there's not time for filing is inconsistent with the bylaws we are in dispute about this and decided to adopt the interim procedures in time resolve this dispute without holding what up what ICANN insure us is an urgent need for the bylaws in an interim basis.  So I am okay with that.  But only on the understanding that I want understood for the record want written into the record that in no way [indiscernible] resolve at all from the disagreement or the dispute as to the compatibility from this clause with the bylaws or it's probe tee.  Thank you:

Further, on 11 October, when we discussed the time for filing, you stated:

I was going to note that Sam[antha Eisner, ICANN Deputy General Counsel] just said that ICANN is committed to make sure that people weren't  prejudiced by this rule, if the rule is subsequently changed in the final -- in the final rules.

That's great.  So why don't we keep it simple and just say that. Just say that this -- that whether there should be a concept of repose is still under review.  And that in the event that it is changed, we will introduce transitional language to insure that nobody was continued to be prejudiced by the temporary adoption of this rule?

____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631

________________________________________
From: Malcolm Hutty <malcolm at linx.net>
Sent: Tuesday, October 23, 2018 7:25 AM
To: McAuley, David; Wendy Profit
Cc: Secretary; iot at icann.org; Correspondence; Board Ops Team
Subject: [Ext] Re: [IOT] [CORRESPONDENCE] Cherine Chalaby to David McAuley - Interim Supplementary Rules for the IRP

Dear David,

When you write to Cherine saying:

> Members of the IOT were informed of the rules-drafts along the way and
> no objections were received by the appointed time.

that is not a fair and frank report.

When Rule 4 was read into the record in our meeting on 9th October, I
restated that I held the position that the provision on time for filing
is inconsistent with the bylaws, that I did not resile from that
position, and that I reserved the right to dispute the compatibility of
this provision with the bylaws by any means available.

Robin Gross also commented in the chat room "I agree with Malcolm, for
the record".

The transcript reflects this.

I have no objection to Interim Rules going ahead once the incompatible
subclause is severed.

I would be grateful if you would clarify your report to Cherine,

Sincerely,

Malcolm Hutty.

On 23/10/2018 15:07, McAuley, David via IOT wrote:
> Cherine Chalaby
>
> Chair
>
> Internet Corporation for Assigned Numbers and Names (ICANN)
>
>
>
> Cc: IOT email list
>
> 23rd October 2018
>
> Re: Draft Interim Supplementary Rules for IRP
>
>
>
> Dear Cherine,
>
>
>
> As Chair of the IOT, I was surprised to read that such concerns have
> come to the board’s attention. I had not previously heard of that.
>
>
>
> The IOT has discussed the ‘Time-for-Filing’ rule for a very long time
> and, while we have not yet reached agreement on a final rule, I believe
> the IOT did reach consensus on the interim rule. I recognize that one
> member, among others, has expressed concerns over the 12-month overall
> time for filing limitation in the rules. And I understand that it is
> this rule that is the source of the concerns you mentioned.
>
>
>
> Recently, as referenced above, the IOT discussed the possibility to send
> to the board for adoption an “interim” set of rules that could be in
> place while the IOT continues work to finalize the rules. We discussed
> the further possibility that the ICANN 63 board meeting might be a time
> to achieve this. We viewed it as important to get a workable set of
> rules in place, even if on only an interim basis.
>
>
>
> I note the IOT’s inclusion of language that specifically identifies the
> Time-for-Filing rule as not yet final and notes that transition language
> will be put in place to avoid prejudice to potential claimants if the
> final rule allows for additional time to file.
>
>
>
> Members of the IOT were informed of the rules-drafts along the way and
> no objections were received by the appointed time.
>
>
>
> In my opinion we have properly approved and forwarded the interim rules
> as received by the board in the past few days, and I encourage the Board
> to consider and approve them this week.
>
>
>
> I add that the IOT will take up finalizing the supplementary rules as
> its next agenda item, and that work will not be prejudiced by the
> approval of the interim rules.
>
>
>
> Sincerely,
>
> David McAuley
>
> Chair, IRP-IOT
>
>
>
> *From:*Wendy Profit <wendy.profit at icann.org>
> *Sent:* Tuesday, October 23, 2018 5:51 AM
> *To:* McAuley, David <dmcauley at verisign.com>
> *Cc:* Cherine Chalaby <cherine.chalaby at board.icann.org>; Secretary
> <secretary at icann.org>; Correspondence <Correspondence at icann.org>; Board
> Ops Team <board-ops-team at icann.org>
> *Subject:* [EXTERNAL] [CORRESPONDENCE] Cherine Chalaby to David McAuley
> - Interim Supplementary Rules for the IRP
>
>
>
> Dear David McAuley,
>
>
>
> Please find the attached letter from Cherine Chalaby regarding Interim
> Supplementary Rules for the IRP. You may expect the letter to be posted
> shortly to the ICANN Correspondence page:
> https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_correspondence&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=cwVaqD68-xMFxtYKvGc5EUul5fQrEC0-dxMXoIKCZ8A&m=DNznX3QS8lX2uaE5BEKtep-uHxU2DgHQ8BDdHbLzhtw&s=wnw84rdVDDNPgQLHfHpkMc9-Ug8WyLriE1eb9y9yVGA&e=.
>
>
>
> Thank you,
>
>
>
> Wendy Profit
>
> ICANN – Senior Manager, Board Operations
>
> 12025 Waterfront Drive, Suite 300
>
> Los Angeles, CA 90094
>
>
>
>
>
>
>
> _______________________________________________
> IOT mailing list
> IOT at icann.org
> https://mm.icann.org/mailman/listinfo/iot
>

--
            Malcolm Hutty | tel: +44 20 7645 3523
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