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

Tue Jan 19 17:09:41 UTC 2021

All,

During our consolidation group call, I agreed with and supported Helen's
suggestion that we examine and refine the concept of "amicus" as reflected
in Rule 7.  Although I have always substituted "intervenor" for  amicus
curiae while reading that rule, I also agree that modifying to "intervenor"
may be too restrictive.

Finally, with apologies, I have a conflicting personal obligation so am
unable to join the call.

Kristina

On Tue, Jan 19, 2021 at 8:56 AM Lee, Helen via IOT <iot at icann.org> wrote:

> 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
>
>
>
>
>
> [image: Verisign]
>
> *Helen J. Lee*
> Director and Senior Corporate Counsel
> hjlee at Verisign.com
>
> t: 703-948-4242
> 12061 Bluemont Way, Reston, VA 20190
>
> Verisign.com <http://www.verisigninc.com/>
>
> [image: Verisign™]
>
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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
>
>
>
> *Caution:* This email originated from outside the organization. Do not
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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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