[IOT] Use Case on Time for Filing IRP with an Outer Limit

[Mike Silber]

Makes sense to me!

Thanks Liz

On Thu, 11 Mar 2021 at 01:19, Elizabeth Le via IOT <iot at icann.org> wrote:

> Dear IOT members,
>
>
>
> During our last IOT discussion, ICANN org took an action item to provide
> in writing the use case on the time for filing an IRP with an outer time
> limit under the EduTania scenario (Scenario 1) set forth by Malcolm.  This
> example assumes that the current 120 day/1 year limitation is in place,
> though the timing could change based on the final outcomes of the IOT’s
> deliberation.
>
>
>
> Though ICANN approved the program five years before, in that fifth year
> ICANN org implements the 5-by5-by5 program in Ruritania. That act of
> implementation is an ICANN staff action that could be challenged under IRP,
> assuming the claimant meets the other standing requirements.  Specifically,
> the claimant’s filing of an IRP would be considered timely (i.e., not
> capable of challenge on timing grounds) so long as it filed within 120 days
> after the claimant became aware of the material effect of action which is
> not more than 12 months from the date of the action (i.e., ICANN’s
> introduction of the program into Ruritania). The claimant, of course, has
> other procedural items it must fulfill, such as alleging the harm caused by
> the act and that ICANN’s act was outside of the Bylaws/mission, but those
> obligations exist separate from the timing issue.
>
>
>
> As part of its timely IRP case, the claimant will be able to challenge the
> program and its implementation as applied to Ruritania.  So, while the
> claimant would be time barred from challenging the Board’s initial adoption
> of the program five years prior or potentially how the program was
> implemented in prior years (depending on the specific dates of roll-out),
> the claimant would not be time barred from challenging the year 5
> implementation.  If there is Panel declaration in the claimant’s favor
> (i.e., that ICANN did in fact violate its Articles or Bylaws in the
> implementation), the ICANN Board would likely evaluate how that declaration
> impacts both the specific implementation of the program and well as the
> program as a whole.
>
>
>
> This example demonstrates that there are many touch points along the way
> where an action may be taken by either the Board (the initial approval) or
> the org (new implementation action) that supports a claimant’s ability to
> act in a timely manner while challenging ICANN’s accountability.  Claimants
> can challenge ICANN’s actions without introducing time frames (or lack
> thereof) for challenges that diminish the certainty of ICANN’s actions. It
> also reduces the need to create new specific briefing processes to consider
> and weigh timeliness of claims, so that panels can more quickly proceed to
> the substantive merits.
>
>
>
> Best regards,
>
> Liz
>
>
>
> -----
>
> Elizabeth D. Le
>
> Associate General Counsel | ICANN
>
> Los Angeles, CA
>
>
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