[IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

Tue Jan 19 13:55:57 UTC 2021

Dear all,

During the consolidation subgroup meeting last week, I raised a point regarding amicus participation in IRPs, which some of us agreed would greatly benefit from discussion with the larger group. Accordingly, I have outlined my points below for discussion:

In the minds of most, including international arbitrators and at least US based lawyers, “amicus” suggests a limited role that may be inconsistent with what is fair in a particular dispute, or may be inconsistent with due process. Indeed, the term “amicus” has specific meaning in the law; traditionally, amici are given very limited participation, whether in court or arbitration. While I am unclear regarding the limitations of the ICANN process associated with changing the term “amicus” itself, assume for purposes of illustration that we call “amicus” instead “Interested Entity.” Interested Entity should be allowed a level of participation appropriate to how its interests may be affected by the outcome -- without the built in bias standard plainly suggested by the term amicus. Indeed, a set of rules that allows a serious impact on legal rights based on little participation may, as a system, be a violation of due process and subject to being stricken down.

Rule 7 of the Interim Procedures define amicus as below:

“Any person, group, or entity that has a material interest relevant to the DISPUTE but does not satisfy the standing requirements for a CLAIMANT set forth in the Bylaws may participate as an amicus curiae before an IRP PANEL, subject to the limitations set forth below. Without limitation to the persons, groups, or entities that may have such a material interest, the following persons, groups, or entities shall be deemed to have a material interest relevant to the DISPUTE and, upon request of person, group, or entity seeking to so participate, shall be permitted to participate as an amicus before the IRP PANEL…” https://www.icann.org/en/system/files/files/irp-interim-supplementary-procedures-25oct18-en.pdf

The drafting history of Rule 7 (and others who participated in that process can speak to it with far more authority than I may be able to) indicates it is designed to accommodate broader third party involvement than the expression “amicus curiae” is traditionally understood to include. The Panel’s decision in Phase I of Afilias matter concluded “nature and breadth of the amicus participation that should be afforded to the Applicant Amici in this

case – whether it be under the provisions of Rule 7, properly interpreted, as an exercise of the Panel’s discretion under Section 4.3(o)(v) of the Bylaws, or under relevant principles of international law” should be “broadly accorded.” https://www.icann.org/en/system/files/files/irp-afilias-panel-decision-phase-1-redacted-12feb20-en.pdf

While my argument is not that claims of amici should routinely equal those of full intervenors, I may start the conversation by suggesting that we devise a truly flexible standard for participation by the Interested Entity. Would it be possible to build into these rules a concept that the degree of participation should be flexible and encompass that participation necessary fully to protect the rights and interests of the amici, including, where appropriate to that end, the right fully to participate in all proceedings as a party?  We could develop a standard for involvement by an amicus that avoids the definition likely to be given the term absent an express definition or standard. It would also be helpful to add a statement that the category of participation is unique to the IRP process, given its specific limitations, and therefore to be defined by the rules themselves and not by reference to other forms of participation in courts or arbitrations such as “amici.”

Helen

Helen J. Lee
Director and Senior Corporate Counsel
hjlee at Verisign.com<mailto:hjlee at Verisign.com>

t: 703-948-4242
12061 Bluemont Way, Reston, VA 20190

Verisign.com<http://www.verisigninc.com/>

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From: IOT <iot-bounces at icann.org> On Behalf Of Bernard Turcotte
Sent: Monday, January 18, 2021 2:52 PM
To: iot at icann.org
Subject: [EXTERNAL] [IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

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Proposed agenda;

1.Review agenda and updates to SOIs
2. Action items from the last meeting:

*       All - review the public comment input from both public comment periods on the topic of the repose
*       Staff – Prepare a scorecard to track progress vs major items.

3. Brief update on consolidation sub-group meeting.

4. Continue discussions on the time for filing issue:

*       Review and discuss public comment input on the repose (prong 2) – IOT members should attend the meeting prepared to identify, for discussion, those comments that they consider to be meaningful n this topic
*       Time permitting, begin discussion and review public comment input on time for filing from the date Claimant knew/ought reasonably to have known (prong 1)

5. AOB

6. Next Meeting  - Tuesday 2 February 1900 UTC

Bernard Turcotte

ICANN Support to the IOT

For

Susan Payne

Chair IOT

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