[IOT] IRP-IOT: Timing of other accountability mechanisms

Tue May 11 16:43:55 UTC 2021

Thank you Susan,
Very helpful indeed.
Best
Flip

Flip Petillion
fpetillion at petillion.law<mailto:fpetillion at petillion.law>
+32484652653
www.petillion.law

[id:image001.png at 01D3691D.DA7539C0]<https://www.petillion.law/>

  Attorneys – Advocaten – Avocats

From: IOT <iot-bounces at icann.org> on behalf of Susan Payne via IOT <iot at icann.org>
Reply to: Susan Payne <susan.payne at comlaude.com>
Date: Tuesday, 11 May 2021 at 18:27
To: "iot at icann.org" <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

[cid:image002.png at 01D74695.981DA4F0]<https://comlaude.com/>

28-30 Little Russell Street,
London WC1A 2HN, UK
T +44 (0) 20 7421 8250
Ext 255

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