[IOT] Challenges of "inaction" in past IRPs

[Elizabeth Le]

Dear IOT members,

On a recent call, ICANN org took an action item to research and provide additional information on how “inaction” has been plead in past IRPs.

In order to view how inaction has been considered, without the benefit of understanding the full intention when the IRP was introduced, we reviewed the 2012 Accountability Structures Expert Panel effort through which the IRP was updated, and noted no discussion of “inaction”, and also noted no discussion of “inaction” during the CCWG-Accountability deliberations.  We then turned to IRPs themselves.

There have been two concluded IRPs where “inaction” was part of the claim against ICANN, and the ongoing Afilias IRP also includes a claim of inaction.  As the Afilias IRP has not yet reached a panel declaration, we do not have any indication from the Panel on how it considers the issue of “inaction” and the viability of the inaction claim within that IRP.  The other two IRPs (Asia Green IT Systems Bilgisayar San. ve Tic. Ltd. Sti. v. ICANN (.ISLAM/.HALAL); Donuts, Inc. v. ICANN (.SPORTS/.RUGBY)), both filed under the pre-transition Bylaws/IRP, have both reached panel declaration.  Neither of the IRPs faced a timeliness challenge tethered to the “inaction” claim, so the issue presented within the IOT (can an inaction be a continuing violation so as to not be subject to timing considerations) has not been subject to any Panel consideration. The most helpful takeaways include: 1. Panel confirmation that inaction can be a basis for an IRP; and 2. Panel suggestion that inaction should be tethered to a duty to act, and not just solely the power to act.

While neither of these Panel decision address the timing issue, the focus on duty – and not just a choice – suggests that there is likely a time that a Claimant could/should understand that there is action expected that is not forthcoming.  There is little basis for the IOT to develop any exceptions to the timing rule based on claims of inaction, because if there is a duty to act, there is also a timeframe within which that duty should be apparent, and a time within which the Claimant should be aware of that duty.

Some more detail on the historical IRP claims is below.

In the Asia Green IRP<https://www.icann.org/resources/pages/irp-agit-v-icann-2015-12-23-en>, part of the claim involved ICANN’s alleged refusal to identify the concerns raised by Objectors to the top-level domains at issue, how the claimant could resolve those concerns, or to identify a process through which concerns could be resolved. Though ICANN stated that the Board intended to resume consideration of the strings once the concerns were addressed, the Panel focused part of its decision on ICANN’s deferral of action (inaction) – that ICANN is obligated to affirmatively act, as opposed to defer decision, and the deferral of decision on the applications (i.e., inaction) was the source of a Bylaws/Articles violation. See Declaration, https://www.icann.org/en/system/files/files/irp-agit-final-declaration-30nov17-en.pdf.

The Donuts IRP<https://www.icann.org/resources/pages/donuts-v-icann-2014-10-13-en> involved ICANN’s refusal of a request to establish a procedure for appellate review of objection decisions in the New gTLD Program.  The IRP was alleged on both action and inaction grounds, with the action being the acceptance of the objection panel decisions, and the inaction being the failure to act on the request to implement appeals mechanisms.  The Panel summarized Donuts’ claims of alleged Board inaction as follows:  (1) failure to train ICC experts on the proper application of community objection standards, which led to errors in the application of that standard that prevented Donuts’ applications from advancing; (2) failure to institute a review mechanism to regulate the community objection decisions of ICC experts; and (3) failure to intervene in this individual case.  The Panel agreed with ICANN that ICANN had no obligation to institute training, no affirmative duty to create an appellate mechanism, and no affirmative duty to review the result in any particular case.

However, the IRP Panel gave some dicta that is helpful to consider when framing an inaction:

It seems to have become common ground between the parties to this IRP that under some circumstances the requester may legitimately complain of the Board’s failure to take action as well as its affirmative acts.  Other Panels are in accord.  Not all inaction is actionable, however.  Rather, in the Panel’s view, “actionable inaction” is a failure that is inconsistent with a duty to act, whether that duty is formally established by ICANN’s constitutive documents, generated by some other explicit or clearly implied undertaking by the Board, or, powerfully suggested by all the circumstances present.  In assessing alleged failures to act, the question is not whether the Board has the power to act, or whether to act would be consistent with the Articles and Bylaws, but whether the Board must act given all the circumstances.

See Declaration at ¶129, https://www.icann.org/en/system/files/files/irp-donuts-final-declaration-05may16-en.pdf.

Looking forward to our continued discussion on this issue.

Best regards,
Liz

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Elizabeth Le
Associate General Counsel | ICANN
Los Angeles, CA 90232
elizabeth.le at icann.org<mailto:elizabeth.le at icann.org>
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