[IOT] IOT - Update from plenary meeting of January 11 19:00 UTC
susan.payne at comlaude.com
Fri Jan 14 16:31:21 UTC 2022
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.
Head of Legal Policy
T +44 (0) 20 7421 8250
[cid:image001.png at 01D80964.28E92FE0]<https://comlaude.com/>
From: IOT <iot-bounces at icann.org> On Behalf Of Bernard Turcotte via IOT
Sent: 06 January 2022 15:31
To: iot at icann.org
Subject: [IOT] IOT - Agenda and document for the plenary meeting of January 11 19:00 UTC
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
Pending Action Items:
1.1.ICANN Legal to comment on MH proposal vs. tolling.
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.
ICANN Support to the IOT.
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