[IOT] Tolling of Time for Filing
Nigel Roberts
nigel.roberts at board.icann.org
Wed Jun 9 08:21:39 UTC 2021
Just for style ..
is "prong" a usual word in American Legal English?? I've never seen it
before and it reads rather odd to me.
UK judgments and arguments usually refer to the "limbs" of the matter,
which is why I ask.
On 08/06/2021 18:49, Mike Rodenbaugh via IOT wrote:
> Hi all,
>
> I would implore us to find a better 'start from' date on these time
> periods, than the 'date of publication on ICANN's website.' Because
> that is completely within ICANN's control, sometimes they don't publish
> for months, their website is huge, and it is very difficult to monitor
> that huge website for changes. At bare minimum, it should be specified
> exactly where on that huge website that ICANN's official actions are
> published.
>
> Also it seems that Prong 2 will be subsumed within Prong 1, because
> ICANN undoubtedly will argue that claimant 'reasonably should have
> known' of the action upon date of publication on the website.
>
> We should put the onus on ICANN to send written notice to directly
> affected parties of actions that impact them, with time periods starting
> from the notice date. Of course many or most actions are not specific
> to certain parties, so I suggest there should be something the the US
> Federal Register, or the USPTO Official Gazette... where ICANN's actions
> are published regularly once a month, so that practitioners and public
> will know when and where to find ICANN's official actions, and can
> subscribe to that email list.
>
> Thanks for considering these thoughts.
> -Mike
>
> Logo
>
>
>
> Mike Rodenbaugh
>
> address:
>
>
>
> 548 Market Street, Box 55819
>
> San Francisco, CA 94104
>
> email:
>
>
>
> mike at rodenbaugh.com <mailto:mike at rodenbaugh.com>
>
> phone:
>
>
>
> +1 (415) 738-8087
>
>
>
> On Tue, Jun 8, 2021 at 8:04 AM Susan Payne via IOT <iot at icann.org
> <mailto:iot at icann.org>> wrote:
>
> Dear IOT members____
>
> For the purposes of our call today we will be trying to agree on
> when it may be appropriate to toll the time limits for filing. I am
> attaching a short slide deck setting out a strawperson proposal,
> based on the discussions we have had to date, informed by the public
> comment input. For convenience, the slide text is also reproduced
> below. Please also note the time limits for the various
> accountability mechanisms set out in the email below this one in the
> chain, which was circulated before a previous call.____
>
> __ __
>
> I look forward to speaking later today.____
>
> *__ __*
>
> *Time for Filing: Proposal for tolling of time limits*____
>
> Time for filing of the IRP should be (subject to tolling, dealt with
> below):____
>
> * *Prong 1*: No more than 120 days of when the Claimant /becomes
> aware or reasonably should have become aware of the material
> effect of the action or inaction giving rise to the
> Dispute./[Note: wording in italics is from the Interim Rules and
> taken from Bylaws: 4.3(b)(i) definition of a Claimant and
> 4.3(n)(iv)(A)]____
> * *Prong 2*: And in any event, no more than [24/36] months from
> the date of such action or inaction____
> o [subject to the safety valve language which ICANN Legal are
> working on]____
> o “date of the action or inaction” for the purposes of the
> repose shall run from the date of publication on the ICANN
> website. [Note: this will give a fixed date, knowledge of
> which is available to all, and will be an incentive for
> prompt publication]____
>
> __ __
>
> Both time limits for the time for filing (Prongs 1 and 2) shall be
> tolled for the time expended on other accountability mechanisms
> filed in a timely manner, as follows:____
>
> * *CEP*– any time spent in CEP. ____
> o Where there has been a CEP, therefore, time for an IRP would
> begin to run from the date one party gives notice to the
> other that it is terminating the CEP ____
> o Question: should this instead run from publication on the
> ICANN website that the CEP has terminated, in order to give
> certainty to third parties?____
>
> __ __
>
> * *RFR*– any time spent seeking a reconsideration on matters
> directly related to the Dispute. ____
> o Time for an IRP would therefore begin to run from the
> publication of:____
> + Board decision on the recommendation of the BAMC; or____
> + BAMC summary dismissal____
>
> __ __
>
> * *Ombuds Complaint *– any time spent in pursuing an Ombuds
> complaint, provided that this was filed within 60 days of when
> the Claimant becomes aware or reasonably should have become
> aware of the material effect of the action or inaction. ____
> o Where there has been a timely Ombuds complaint, time for an
> IRP would begin to run from the date of publication of:____
> + The Ombuds’ declining jurisdiction or giving notice that
> it does not have jurisdiction over the Complaint____
> + the Ombuds determination/decision/recommendation [Note:
> ICANN Legal to please assist with identifying the
> appropriate conclusion of an Ombuds Complaint]____
>
> __ __
>
> * *DIDP *– any time spent awaiting a decision on a first DIDP on
> matters directly related to the Dispute, provided that this was
> filed within 60 days of when the Claimant becomes aware or
> reasonably should have become aware of the material effect of
> the action or inaction. ____
> o Where there has been a timely DIDP, time for an IRP would
> begin to run from the date of publication of:____
> + Org’s decision on the DIDP____
> o Question: should this allow for more than one DIDP? [Note:
> RySG comments had proposed 2x DIDPs for the 120 day time
> limit and 2x DIDPs for the repose if 24 months, none if
> repose is 36 months]____
>
> *Other Issues on Timing____*
>
> Do we need to identify and address uncertainties in when a potential
> Claimant “becomes aware or reasonably should have become aware” of
> the action/inaction under prong 1?____
>
> * 2^nd PC: INTA: term overly vague. “include a test for
> identifying when a claimant is deemed to be under inquiry notice
> injury and the clock begins to run. Such tests have been devised
> under U.S. jurisprudence and there may be other jurisdictions
> that apply similar tests.” ____
>
> Other?____
>
> __ __
>
> __ __
>
> __ __
>
> __ __
>
> Susan Payne
> Head of Legal Policy
> Com Laude
> *T*+44 (0) 20 7421 8250
> *Ext*255
> <https://comlaude.com/>____
>
> *From:*IOT <iot-bounces at icann.org <mailto:iot-bounces at icann.org>>
> *On Behalf Of *Susan Payne via IOT
> *Sent:* 11 May 2021 17:27
> *To:* iot at icann.org <mailto:iot at icann.org>
> *Subject:* [IOT] IRP-IOT: Timing of other accountability mechanisms____
>
> __ __
>
> __ __
>
> Dear IOT members____
>
> __ __
>
> On our last call we discussed the possible other accountability
> measures which it might be appropriate to toll IRP time limits for,
> and agreed it would be helpful to have a clearer picture of the time
> these processes take. The below is my best assessment – hopefully
> Sam or Liz will correct me if I have this wrong, but in any event
> there are various timings expressed as “where possible” and some
> steps with no clear time limit that I can find, giving rise to an
> overall lack a clear outer time limit/duration. ____
>
> __ __
>
> I hope this is a useful background to keep in mind when we are
> considering tolling. Bearing all of this in mind, perhaps the
> simplest approach in order to toll for the time taken by these other
> accountability mechanisms, if the group agree this is appropriate,
> would be to have the time to bring an IRP start to run from the
> publication of the final decision on any of these mechanisms, where
> brought, or, in the case of CEP, the date that one party notifies
> the other in writing that they consider the CEP is at an end:____
>
> __ __
>
> *Request for Reconsideration____*
>
> __ __
>
> *Action____*
>
>
>
> *Bylaws timing____*
>
> Filing of request____
>
>
>
> 30 days from action/decision etc____
>
> Review by BAMC; sent to Ombuds____
>
>
>
> ?____
>
> Ombuds to recuse or respond____
>
>
>
> 15 days____
>
> BAMC decision____
>
>
>
> 30-90 days, where possible____
>
> Requestor rebuttal____
>
>
>
> 15 days____
>
> Board decision____
>
>
>
> 45 days____
>
> *135 days from receipt of RFR by BAMC____*
>
> __ __
>
> Many of these timings are “where possible” and so there is a degree
> of flexibility, however the Board decision within 135 days of
> receipt of the RFR is expressed as “shall”.____
>
> Clearly a complainant who pursues an RFR would be very likely not to
> know the final outcome within the 120 days assigned for filing an
> IRP.____
>
> __ __
>
> *Cooperative Engagement Process____*
>
> __ __
>
> *Action____*
>
>
>
> *Timing in current process document____*
>
> Initiate____
>
>
>
> 15 days of minutes____
>
> Icann appoint rep____
>
>
>
> 2 days____
>
> Initial telephone conference____
>
>
>
> 3 days____
>
> Follow up meeting____
>
>
>
> 7 days____
>
> Parties can agree to extend discussions ____
>
>
>
> ?____
>
> IRP filing deadline tolled____
>
>
>
> 15 days, unless parties agree differently____
>
> __ __
>
> These timings come from the CEP process document, which is based on
> the former Bylaws process and so does need to be reviewed and
> redrafted. ____
>
> __ __
>
> In practice, think anyone engaged in a CEP would confirm the
> process took significantly longer than 15 days. Often many months.____
>
> __ __
>
> *DIDP____*
>
> *__ __*
>
> *Action ____*
>
>
>
> *Timing in policy____*
>
> Submission____
>
>
>
> No specific time limit____
>
> ICANN response where possible____
>
>
>
> 30 days____
>
> *__ __*
>
> *Ombuds____*
>
> *__ __*
>
> *Action____*
>
>
>
> *Timing in Ombuds Framework____*
>
> Complaint____
>
>
>
> 60 days - Discretion to refuse if over 60 days from the act____
>
> Ombuds investigation and draft report____
>
>
>
> ?____
>
> Response to draft report by complained-about body____
>
>
>
> 30 days where possible____
>
> *__ __*
>
> There was a question about whether the Ombuds has jurisdiction.
> According to the Framework
> <https://www.icann.org/en/system/files/files/ombudsman-framework-26mar09-en.pdf>,
> they do: ____
>
> “The ICANN Ombudsman will receive and have jurisdiction over
> complaints of unfairness concerning: • Decisions, actions, or
> inactions by one or more members of ICANN staff; • Decisions,
> actions, or inactions by the Board of Directors that may be
> inconsistent with the Articles of Incorporation or the Bylaws. •
> Decisions, actions, or inactions by constituent bodies”.____
>
> __ __
>
> Susan Payne
> Head of Legal Policy
>
> <https://comlaude.com/>
>
> 28-30 Little Russell Street,
> London WC1A 2HN, UK
> *T*+44 (0) 20 7421 8250
> *Ext*255
>
> comlaude.com <http://comlaude.com>
>
> ** <https://www.linkedin.com/company/com-laude>* ***
> <https://twitter.com/comlaude?lang=en>* ***
> <https://www.facebook.com/ComLaude/>____
>
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> (deleting the body of the email and attachments in your reply) and
> immediately and permanently delete it. Please note that Com Laude
> Group Limited (the “Com Laude Group”) does not accept any
> responsibility for viruses and it is your responsibility to scan or
> otherwise check this email and any attachments. The Com Laude Group
> does not accept liability for statements which are clearly the
> sender's own and not made on behalf of the group or one of its
> member entities. The Com Laude Group is a limited company registered
> in England and Wales with company number 10689074 and registered
> office at 28-30 Little Russell Street, London, WC1A 2HN England. The
> Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company
> registered in England and Wales with company number 5047655 and
> registered office at 28-30 Little Russell Street, London, WC1A 2HN
> England; Valideus Limited, a company registered in England and Wales
> with company number 6181291 and registered office at 28-30 Little
> Russell Street, London, WC1A 2HN England; Demys Limited, a company
> registered in Scotland with company number SC197176 and registered
> office at 15 William Street, South West Lane, Edinburgh, EH3 7LL
> Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, a
> corporation incorporated in the State of Washington and principal
> office address at Suite 332, Securities Building, 1904 Third Ave,
> Seattle, WA 98101; Com Laude (Japan) Corporation, a company
> registered in Japan with company number 0100-01-190853 and
> registered office at 1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033,
> Japan; Com Laude Domain ESP S.L.U., a company registered in Spain
> and registered office address at Calle Barcas 2, 2, Valencia, 46002,
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