[IOT] IOT proposed language on repose and safety valve
Susan Payne
susan.payne at comlaude.com
Mon Feb 7 17:56:28 UTC 2022
Hi all
As a follow-up to our last IOT call I was due to circulate proposals on:
1. The “material effect” language – clauses A and D of the ICANN proposed draft of 13 December;
2. Who should be the decision maker for applications to file an IRP out of time.
The below are my suggestions, to move the discussion along. Improvements or alternatives are very welcome.
1. “material effect” language
The aim is to try to reflect the language in the Bylaws, when setting the time for filing of an IRP.
The current interim rules use the language “after a CLAIMANT becomes aware of the material effect of the action or inaction giving rise to the DISPUTE” when talking about the time for filing an IRP. As we have discussed, however, this language is a little clunky.
The language used in the Bylaws is as follows:
4.3 (b) (i) A "Claimant" is any legal or natural person, group, or entity including, but not limited to the EC, a Supporting Organization, or an Advisory Committee that has been materially affected by a Dispute. To be materially affected by a Dispute, the Claimant must suffer an injury or harm that is directly and causally connected to the alleged violation.
(ii) "Covered Actions" are defined as any actions or failures to act by or within ICANN committed by the Board, individual Directors, Officers, or Staff members that give rise to a Dispute.
(iii) "Disputes" are defined as:
(A) Claims that Covered Actions constituted an action or inaction that violated the Articles of Incorporation or Bylaws, including but not limited to [a list of examples].
On our last call, Scott suggested in the chat that we refer instead to becoming aware of being materially affected by the action/inaction, and I think that this would work to both reflect the Bylaws language and be better understood by users. This would amend the language for Rule 4 clauses A and D to the following:
A. A CLAIMANT shall file a written statement of a DISPUTE with the ICDR within the following timeframes:
i. for DISPUTES challenging Board or Staff action, within 120 days after the date on which the CLAIMANT became aware of, or reasonably should have become aware of, being materially affected by the action being challenged in the DISPUTE; or
ii. for DISPUTES challenging Board or Staff inaction, within 120 days after the date on which the CLAIMANT reasonably concluded, or reasonably should have concluded, that action would not be taken in a timely manner became aware of, or reasonably should have become aware of, being materially affected by the failure to act being challenged in the DISPUTE.
D. Any request for leave to file a written statement of a DISPUTE under 4.C shall be accompanied by CLAIMANT’s proposed statement of a DISPUTE and must be filed within 30 calendar days of:
* the CLAIMANT becoming aware of being materially affected by the action or inaction being challenged in the DISPUTE, if the late filing is requested under 4.C.ii above; or
* the CLAIMANT becoming able to file a written statement of a DISPUTE, if the late filing is requested under 4.C.iii above.
1. Who should hear and decide applications for leave to file an IRP out of time
As discussed on our last call, the proposed new rule 4, as presently drafted, envisages that a potential claimant who is out of time to bring their IRP can make an application to the 3-person IRP panel for leave to file late (provided they can demonstrate they meet the necessary criteria). IRP panel appointment, however, is something which happens after an IRP is commenced, with the claimant and ICANN each selecting one panelist (from the Standing Panel, assuming this is in place) and then those two panelists selecting the third. At the time that an application is made for leave to file out of time, therefore, there is no IRP panel.
On our last call, I agreed to make a proposal. My suggestion would be that:
* Such applications should be made to the IRP provider and heard by a single panelist selected from the Standing Panel. If the Standing Panel is not in place, then the IRP provider will appoint a single panelist to decide this application, using the procedure set out at ICDR Rule 13(6). This seems to me to be preferable to having the parties go through all the steps for appointment of a 3-person panel before the potential Claimant has actually been granted leave to proceed.
* Decisions on applications for leave to file out of time will be considered final and only open to reconsideration by the full IRP Panel where the single panelist was materially and fraudulently misled. This is important to give both parties certainty. It would be unfair to both parties, but particularly to the Claimant, to have their leave to file the IRP later overturned after they have gone to the time and expense of submitting their IRP and participation in IRP panel selection.
* ICDR Rule 13(6) deals with the appointment of arbitrators for disputes where the parties have not agreed on a process. I think this process would also work adequately for a short-term panelist appointment. The rule states:
If the parties have not selected an arbitrator(s) and have not agreed upon any other method of appointment, the Administrator, at its discretion, may appoint the arbitrator(s) in the following manner using the ICDR list method. The Administrator shall send simultaneously to each party an identical list of names of persons for consideration as arbitrator(s). The parties are encouraged to agree to an arbitrator(s) from the submitted list and shall advise the Administrator of their agreement. If, after receipt of the list, the parties are unable to agree upon an arbitrator(s), each party shall have 15 days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the Administrator. The parties are not required to exchange selection lists. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on the parties’ lists, and in accordance with the designated order of mutual preference, the Administrator shall invite an arbitrator(s) to serve. If the parties fail to agree on any of the persons listed, or if acceptable arbitrators are unable or unavailable to act, or if for any other reason the appointment cannot be made from the submitted lists, the Administrator shall have the power to make the appointment without the submission of additional lists. The Administrator shall, if necessary, designate the presiding arbitrator in consultation with the tribunal.
I am of course very open to other suggestions, and if there is any input on how this is handled in other arbitral proceedings that would be particularly helpful.
If possible, please share comments and alternative suggestions on both these issues by email. I will allow a little time on tomorrow’s call to present this, but would like to spend the bulk of our call on the fixed additional time/tolling discussion.
Look forward to seeing you all tomorrow.
Susan
Susan Payne
Head of Legal Policy
Com Laude
T +44 (0) 20 7421 8250
Ext 255
[cid:image001.png at 01D819F6.902A2540]<https://comlaude.com/>
From: IOT <iot-bounces at icann.org> On Behalf Of Susan Payne via IOT
Sent: 14 January 2022 16:31
To: iot at icann.org
Subject: Re: [IOT] IOT - Update from plenary meeting of January 11 19:00 UTC
Hi all
Thanks to all those who were able to join our call on Tuesday for the really productive discussion on the rule 4 repose and safety valve language. We will need to continue that discussion on our next call to get through the remainder of the clauses, but I thought it would be helpful to capture at a high level the areas of agreement and areas where we identified that further consideration/work is needed. Please do review, and if I have missed or mis-characterised anything please do correct me, I’m doing this based on the notes I made but don’t yet have the transcript/recording:
Using the section numbering from the ICANN draft of 13 December:
A. Ongoing concerns about the deletion of the text referring to “the material effect of the action or inaction”. Proposal to refer instead to “the material harm arising from the action or inaction” supported.
1. Seeking of leave to file a late IRP:
* Intention is that panel time considering the substance of the dispute is limited until after there has been an initial decision on the timing;
* The leave process is intended to allow those who appreciate they are out of time to still proceed; in a case where a Claimant believes they are in time, but this is successfully disputed, the intent is not that they would thereby have lost their opportunity to ask the panel for leave;
* The leave application effectively stops the clock. To the extent that there is any time limit then it is for seeking leave, as opposed to having filed the subsequent Statement of Claim;
* Language to be reviewed and revised as necessary to ensure it reflects the intent.
Who should consider the application for leave:
* As currently drafted, the decision is deferred to the IRP panel, however no panel will be in place at this point in proceedings. Should a single panelist handle this since, if refused, there is no need to put a full panel in place? Should the parties proceed with selecting their panel before the application has been heard, in which case the application for leave would then be the first decision of that panel? Other suggestions?
* Input required on the appropriate approach – input from practitioners particularly encouraged.
Ci Although helpful to reiterate the need for Standing, which is the case for all Claimants, this should not be something that the Claimant has to establish by clear and convincing evidence at this point in the proceedings in order to be granted leave to file late. That standard is a very high one, with the presumption against the Claimant. Additionally, in some cases Standing could even go to the substance of the dispute. Delete (i) and instead ensure the application for leave should include an explanation of their Standing.
Cii Intent was that this subsection is the one which covers a Claimant who is unable to bring their IRP in time because they were not yet eligible (i.e. did not yet meet the requirements to be a Claimant as set out in the Bylaws). Language to be reviewed and revised as necessary to ensure it reflects the intent.
Ciii Intent of this subsection is to address the concern Kavouss raised about a Claimant unable to file their IRP due to circumstances out of their control – war, civil unrest, earthquake, typhoon etc.
We will pick this up next time – although as ever you are encouraged to continue the discussion on the email.
We will also, time-permitting, which I hope it will be, come back to the discussion of tolling vs fixed additional time, so please do review this in advance and, again, share any thoughts by email where possible.
Susan
Susan Payne
Head of Legal Policy
Com Laude
T +44 (0) 20 7421 8250
Ext 255
[cid:image004.png at 01D819F0.5848EF90]<https://comlaude.com/>
From: IOT <iot-bounces at icann.org<mailto:iot-bounces at icann.org>> On Behalf Of Bernard Turcotte via IOT
Sent: 06 January 2022 15:31
To: iot at icann.org<mailto:iot at icann.org>
Subject: [IOT] IOT - Agenda and document for the plenary meeting of January 11 19:00 UTC
All,
First, happy new year to all. We hope everyone had a good break and is well-rested and ready to get back to IOT work.
Please find below the agenda for our next plenary session as well as an annotated comparison of the two Safety Valve proposals by Susan.
IRP-IOT Meeting #83
11 January 2021 @ 19:00 UTC
Agenda
Pending Action Items:
1.1.ICANN Legal to comment on MH proposal vs. tolling.
Agenda:
1. Review agenda and updates to SOIs.
2. Review status of Action Items.
3. Review and discuss ICANN Legal proposed update to the Repose and Safety Valve document and feedback shared by IOT members.
4. Discussion on tolling vs Fixed Additional Tine.
5. Confirmation of next meeting: 25 January 2022, 17:00 UTC.
We will send a preliminary invitation in a separate email while we wait for the official one.
Bernard Turcotte
ICANN Support to the IOT.
For
Susan Payne
Chair IOT
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The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (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, Spain. For further information see www.comlaude.com<https://comlaude.com>
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