[IOT] IOT - Agenda for May 10 Plenary meeting 18:00 UTC

Tue May 10 16:04:09 UTC 2022

Thank you Susan.

I’m not sure whether that is intended as an internal record, or an conclusion to be published.

If it is internal, then I think it is fine as regards RFR (but see below re CEP).
If it is intended to be published, I think the same thing could be written more succinctly:

“If a Claimant has not passed the Deadline for Filing on the date when they file an RFR but has expired or has fewer than 30 days left to expire on the day the RFR publishes its conclusion, then the Claimant may file a Dispute in the IRP at any time until 30 days after the RFR published its conclusion. This rule shall take precedence over any earlier Deadline for Filing in these rules.”

With regard to including CEP in this, was that concluded and agreed upon at the last meeting (which I unfortunately missed), or is it still open for discussion?

Because I think including the CEP is questionable. The rules strongly pressure a claimant to agree to a CEP before any IRP (on pain of paying ICANN’s legal costs if they refuse), even if there is a clearly defined dispute with no possibility of compromise.

If we adopt this rule, the following unintended incentives will apply:

  *   ICANN will have an incentive to spin out pointless CEPs so as to run the clock down for the claimant, diminishing their ability to prepare their best case. Or, at least, it will have no incentive to agree to abandon a pointless CEP promptly;
  *   The Claimant, being distracted from working on developing their statement of claim by having to attend to the CEP, will have an incentive to conclude the CEP prematurely so that they can concentrate on producing the most persuasive argument they can muster.  This will discourage them from investing time and effort in a CEP that might (if successful) have resulted in narrowing the issues to be adjudicated, for the benefit of all.

Neither of these incentives are in the interests of a fair and efficient process.

I would therefore suggest that FAT is not appropriate in the context of CEP: time in CEP should instead be tolled.

Malcolm

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 Malcolm Hutty | Executive Director, Legal and Policy
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From: IOT <iot-bounces at icann.org> On Behalf Of Susan Payne via IOT
Sent: 09 May 2022 21:25
To: iot at icann.org
Subject: Re: [IOT] IOT - Agenda for May 10 Plenary meeting 18:00 UTC

All, further to the below, please see attached revised text of the IOT’s agreement on action item 1.

Regards
Susan

Susan Payne
Head of Legal Policy
Com Laude
T +44 (0) 20 7421 8250
Ext 255

[cid:image001.png at 01D8648C.3DCE29F0]<https://comlaude.com/>
From: IOT <iot-bounces at icann.org<mailto:iot-bounces at icann.org>> On Behalf Of Bernard Turcotte via IOT
Sent: 09 May 2022 18:48
To: iot at icann.org<mailto:iot at icann.org>
Subject: [IOT] IOT - Agenda for May 10 Plenary meeting 18:00 UTC

All,

Please find below the agenda for our May 10, 18:00 UTC call:
Action items:

SP - Fix FAT proposal per KA comments.
SP - Update Rule 4 Document to produce a clean version.
SP - Prepare a draft work plan.

Agenda:
1. Review agenda and updates to SOIs.
2. Review action items.
3. Review amended 30 day Fixed Additional time option for filing
4. Continue the discussion on the 24 month Repose and Safety Valve language
5. Confirmation of next meeting: 24 May 2022, 18:00 UTC.

Bernard Turcotte
ICANN Support to the IOT
For
Susan Payne
Chair IOT
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