[IOT] Timing - Repose Issue

Malcolm Hutty malcolm at linx.net
Tue Dec 1 18:37:51 UTC 2020


Thank you for taking the time and trouble to address these points clearly.

I have just replied at great length to Chris, so you will forgive me for
trying to avoid repeating myself, and addressing myself directly to the
unique points you raise. Please don't take that as any disrespect to
your contribution.

On 01/12/2020 17:02, Elizabeth Le wrote:
> To be clear, ICANN org concurs that acts of the ICANN Board or org that
> are outside of mission are not appropriate and should not stand.  That
> fundamental notion is not in dispute. That does not, however, mean that
> the IRP is always the appropriate mechanism to hold ICANN accountable to
> its mission. 

> As we’ve noted before, there are other mechanisms – both
> formal and informal – to bring ICANN into compliance with its mission. 

Whether a particular mechanism is the most appropriate one to use is
probably a matter for the claimant. A claimant may have good reason for
preferring the IRP -where they have control of the case they present -
over a collective community route. What matters to us is whether the IRP
is available to the claimant.

The Bylaws promise that it should be, provided only that the claimant
satisfy the rules on standing, and subject always to the very limited
grounds on which a dispute can be brought. The bylaws do authorise a
deadline to be set for bringing that claim, but in my view it would be
an abuse of our position to use that mechanism so as to deny the
claimant access to the IRP merely because we think that an alternative
accountability mechanism would be more appropriate.

> The IOT is not challenged with making the IRP the ultimate
> accountability measure; the IOT is challenged with developing rules,
> aligned with principles of international arbitration, that allow the IRP
> to operate as anticipated under ICANN’s Bylaws.


> *The Edutania Example*


> If the program as implemented in the fifth year is determined to be
> against the Bylaws, how is that not a sufficient outcome for the IRP
> claimant? 

Yes, it would be. Moreover, if that claim were brought and proven before
the IRP, I suspect it would choose to decide it before reaching the
issue of whether the programme is ultra vires. To the extent that the
IRP is analagous to a constitutional court, it can also be expected to
apply the doctrine of "constitutional avoidance". But that's by the by.

The reason why this is not sufficient is that there may be nothing wrong
with the _manner_ in which ICANN org ran the training programme. There
may indeed be nothing wrong with the _procedure_ by which ICANN org
chose Ruritania as its next territory.

The essence of Edutania Inc's case is not a procedural quibble, but an
argument that ICANN ought not to be conducting training programmes of
that description at all. Edutania may have no claim with a reasonable
prospect of success on any other ground.

Indeed, that being the essence of their claim, I would actually hope
that in the interests of economy and clarity, Edutania would actually be
willing to stipulate to the propriety of ICANN orgs conduct of the
process, limiting their claim specifically to the main question.

> *The GetBaked Example*
> * *
> Let’s assume the IRP goes forward – what’s the outcome? A declaration
> that the ICANN Board violated the Bylaws in adopting a policy; or a
> declaration that the ICANN org implemented policy in a manner that
> violated the Bylaws.  The IRP Panel cannot order a full revocation of
> the policy, though that might be a choice that the ICANN Board takes in
> applying the Panel declaration.

I would hope so to. And I am sure GetBaked would consider that a
valuable remedy.

> Neither the ICANN Board nor the IRP
> Panel can grant the domain name back to the claimant.

Maybe not directly, but once the policy is revoked GetBaked will enjoy
numerous routes to recover their domain that they do not have when the
domain is suspended.

Indeed, it depends on precisely how the hypothetical variant of the UDRP
were constructed, but it is quite possible whoever had effective control
of the domain under suspension would become legally obligated to release
it to GetBaked immediately and automatically upon revocation of the
policy justifying its suspension. I fear we're treading past the useful
limits of hypotheticals.

 Getting this
> hypothetical policy off the books would, of course, be good,

Thank you.

 but that’s
> not really the solution, because the policy itself isn’t really the
> issue.

It is for GetBaked.

The community, the Board, ICANN Legal may all have more to do. But that
is indeed the sphere of collective community processes. It is not our
role to deal with that here.

The IRP is an individual remedy, not (principally) a collective one, and
it exists so that GetBaked may themselves bring ICANN to account.

  In that situation, an ultra vires policy is the symptom of a
> more fully broken system that failed at every step of the way, a system
> that isn’t capable of being repaired in an IRP. This example isn’t a
> stress test of the IRP; it’s a stress test of ICANN. The IOT’s mandate
> is not that broad.

Agreed. It doesn't do everything. Nor should we. But it does do
something important nonetheless.

Thank you again for your comments,

Kind Regards,


            Malcolm Hutty | tel: +44 20 7645 3523
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