[IOT] IOT - Agenda and material for 18 August 2020 call at 19:00UTC

[Malcolm Hutty]

On 18/08/2020 13:59, Susan Payne wrote:
> All
> 
> Please find attached strawperson text for revised rule 7 (agenda item
> 5b).  I plan to introduce this on the call later for preliminary review
> before you all have an opportunity to review and provide feedback over
> the next couple of weeks. 

I have a comment on the straw text for revised rule 7, specifically the
criteria for intervention.

As written, the prospective intervenor is required to show

a.	What the common nucleus of operative fact is; and
b.	Why allowing intervention would foster a more just and efficient
resolution than addressing the DISPUTES individually .


This presupposes that the prospective intervenor believes allowing
intervention would be better than addressing the disputes individually.
They may not - but may feel forced to intervene to defend against the
possibility of their interests being adversely affected by a decision in
the present case.

Indeed, I would go a little further. The prospective intervenor might
not really have a present dispute at all, but rather foresees one being
created by the present case. Except that it wouldn't have a right to
bring an IRP case against an IRP decision.

For example, in a dispute between ICANN and CLAIMANT, it may seem likely
that ICANN will concede one argument to CLAIMANT so as to focus more
clearly on an alternate ground of defence. The prospective intervenor
may wish to intervene *on ICANN's side*, so as to defend an important
principle that ICANN may otherwise concede without argument.

Likewise, the CLAIMANT may concede something to ICANN without argument,
so as to focus on alternate grounds, and the prospective intervenor may
wish to prosecute that argument.

If the prospective intervenor is unable to intervene in such
circumstances, a precedent may be established without the intervenor
ever having had the chance to have their position defended.

The pre-existing text already states:

"Intervention is appropriate to be sought when the prospective
participant does not already have a pending related DISPUTE, and the
potential claims of the prospective participant stem from a common
nucleus of operative facts based on such briefing as the PROCEDURES
OFFICER may order in its discretion. ".

Arguably this contemplates the scenario I have described, but I think
not sufficiently clearly to trump the new text, which would preclude my
scenario being considered. I also think it worth considering whether
this wording could make more clear that an intervention is to be
permitted in such circumstances.

I am not expert on Federal Rules of Civil Procedure, but some cursory
investigation indicates that Rule 24 provides for

i) an absolute right to intervene, where the intervenor's rights would
be impeded by disposition of the case, and where they are not adequately
represented; and
ii) a separate permissive right, at the discretion of the court, where
the case involves a common question of law.

Perhaps that might be a model?

Malcolm.




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            Malcolm Hutty | tel: +44 20 7645 3523
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