[IOT] IOT - Agenda for IRP-IOT Meeting #88 15 March 2022 @ 18:00 UTC
Kristina Rosette
krosette at gmail.com
Tue Mar 15 17:41:43 UTC 2022
Apologies, but I will likely have to miss most of today’s call.
On Tue, Mar 15, 2022 at 1:03 PM Susan Payne via IOT <iot at icann.org> wrote:
> All
>
> Please also see the attached previously-circulated emails from myself and
> Malcolm, proposing revisions to the Rule 4 language to address areas of
> concern explored during our review of the text.
>
>
>
> Thanks
>
> Susan
>
>
>
>
>
> Susan Payne
> Head of Legal Policy
> Com Laude
> *T* +44 (0) 20 7421 8250
> *Ext* 255
>
> <https://comlaude.com/>
>
> *From:* IOT <iot-bounces at icann.org> *On Behalf Of *Bernard Turcotte via
> IOT
> *Sent:* 14 March 2022 19:39
> *To:* iot at icann.org
> *Subject:* [IOT] IOT - Agenda for IRP-IOT Meeting #88 15 March 2022 @
> 18:00 UTC
>
>
>
> All,
>
>
>
> Please find below the agenda for our next plenary session.
>
>
>
>
>
> *IRP-IOT Meeting #**88*
>
> *15 March 2022** @ 1**8**:00 UTC*
>
> *Agenda*
>
>
>
> *Pending Action Items:*
>
> BT – recirculate analysis of Tolling vs Fixed Additional Time (completed
> February 23rd).
>
>
>
> *Agenda:*
>
> 1. Review agenda and updates to SOIs.
>
> 2. Review status of Action Items.
>
> 3. Update from the Sub-Groups:
>
> 3.1. Initiation
>
> 3.2. Consolidation
>
> 4. Confirmation of consensus on 30 day Fixed Additional time option
> for filing (please listen to the recording of our last meeting for details
> at https://community.icann.org/pages/viewpage.action?pageId=186780156 )
>
> 5. Continue the discussion on the Repose and Safety Valve language
> (email inserted below and document attached).
>
> 6. Confirmation of next meeting: 29 March 2022, 18:00 UTC.
>
>
>
> ==================
>
>
>
> *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: *Friday, 14 January 2022 at 17:31
> *To: *"iot at icann.org" <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
>
> <https://comlaude.com/>
>
>
>
>
>
>
> ------------------------------
> 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
> <https://www.google.com/maps/search/28-30+Little+Russell+Street,+London,+WC1A+2HN+England?entry=gmail&source=g>.
> 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
> <https://www.google.com/maps/search/28-30+Little+Russell+Street,+London,+WC1A+2HN+England?entry=gmail&source=g>;
> 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
> <https://www.google.com/maps/search/28-30+Little+Russell+Street,+London,+WC1A+2HN+England?entry=gmail&source=g>;
> 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
> <https://www.google.com/maps/search/15+William+Street,+South+West+Lane,+Edinburgh,+EH3+7LL+Scotland?entry=gmail&source=g>;
> 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
> <https://www.google.com/maps/search/Calle+Barcas+2,+2,+Valencia,+46002,+Spain?entry=gmail&source=g>.
> For further information see www.comlaude.com <https://comlaude.com>
>
>
>
> ---------- Forwarded message ----------
> From: Susan Payne via IOT <iot at icann.org>
> To: "iot at icann.org" <iot at icann.org>
> Cc:
> Bcc:
> Date: Mon, 7 Feb 2022 17:56:28 +0000
> Subject: [IOT] IOT proposed language on repose and safety valve
>
> 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:
>
> 1. 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
> 2. 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
>
> <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
>
> <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
>
>
>
> 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 @ 1**9**: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
> ------------------------------
>
> 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>
> ------------------------------
> 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>
>
>
>
> ---------- Forwarded message ----------
> From: Malcolm Hutty via IOT <iot at icann.org>
> To: Bernard Turcotte <turcotte.bernard at gmail.com>, "iot at icann.org" <
> iot at icann.org>
> Cc:
> Bcc:
> Date: Wed, 9 Feb 2022 16:25:00 +0000
> Subject: Re: [IOT] IOT proposed language on repose and safety valve
>
> I promised I would try to write down the suggestion I raised in the
> meeting last night.
>
>
>
> Although I’m not sure of the wording, I think it might go something like
> this
>
>
>
> “When considering whether an applicant should be permitted to file an IRP
> Claim out of time, the Panelist shall have regard to the Purposes of the
> IRP and any jurisprudence of IRP panels relevant to interpretation of this
> clause in the light of the Purposes”.
>
>
>
>
>
> *From:* Bernard Turcotte <turcotte.bernard at gmail.com>
> *Sent:* 08 February 2022 20:20
> *To:* Malcolm Hutty <Malcolm at linx.net>
> *Subject:* Fwd: IOT proposed language on repose and safety valve
>
>
>
>
>
>
>
> ---------- Forwarded message ---------
> From: *Susan Payne* <susan.payne at comlaude.com>
> Date: Mon, Feb 7, 2022 at 12:56 PM
> Subject: IOT proposed language on repose and safety valve
> To: iot at icann.org <iot at icann.org>
> Cc: turcotte.bernard at gmail.com <turcotte.bernard at gmail.com>
>
>
>
> 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:
>
> 1. 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
> 2. 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
>
> <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 i
>
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