<div dir="ltr"><div class="gmail_default" style="font-family:verdana,sans-serif">May I suggest that some concrete scenarios (a/k/a "stress tests") might help illustrate how the different suggestions would work in practice, and how the concerns will manifest themselves as a result of adoption of one suggestion or the other?</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">I would also caution against parallels between a breach of fiduciary duty and an action or omission that arguably violates the Bylaws. The latter is a fundamental question of whether an action or inaction was within the power of the corporation (i.e., did not violate the Bylaws) or was not within the power of the corporation (i.e., did violate the Bylaws). If the harm from that Bylaws violation is not incurred by a potential complainant until 7 years after the action, why should an action be time-barred? I would argue that what you have is a continuing breach, and thus the clock never starts, much less runs out.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">I have more sympathy for repose in the form of laches (i.e., sitting on a claim that has ripened and could be brought, and is known or should reasonably be known to the potential complainant). I have even mores sympathy if the harm from that claim is not ongoing, and is thus receding in time. An ongoing harm raises more difficult questions, even if the complainant knows or reasonably should have known that a claim had ripened.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">But I can't must much sympathy for the concept of repose where a complainant was either not harmed until some years later, or where actual or constructive knowledge did not happen. What that "repose" does is essentially ratify an act or omission that is at least arguably outside the power of the corporation. I recognize that many of these situations are going to be judgment calls, but that is true regardless of the timing. And in any event, that is why we have panels and hearings.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">If we do need absolute repose at some time, I suggest we use the Rule Against Perpetuities as our model (if memory serves, 21 years after the death of the last pertinent person then living).</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div></div><div class="gmail_extra"><br><div class="gmail_quote">On Sun, Jun 11, 2017 at 1:46 PM, Malcolm Hutty <span dir="ltr"><<a href="mailto:malcolm@linx.net" target="_blank">malcolm@linx.net</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><span class="">On 2017-06-09 21:36, McAuley, David via IOT wrote:<br>
</span><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><span class="">
Dear members of the IRP IOT,<br>
<br>
The fourth item on our agenda for Monday's call (19:00 UTC) is the<br></span>
timing issue - this has been a difficult issue for us and Malcolm has<span class=""><br>
very capably been leading it.<br>
<br>
In my participant role, I am going to suggest a compromise position<br>
(not one that I have mentioned before). It seems there are reasonable<br>
views on both sides of the issue and I offer this as a compromise that<br>
may be a reasonable way forward.<br>
</span></blockquote>
<br>
[...]<span class=""><br>
<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
But we have grappled more with whether an overall "repose" period<br>
should apply.<br>
<br>
My compromise suggestion is to choose a time-limitation period of<br>
repose analogous to a time limitation for claims of breach of<br>
fiduciary duty. A quick Wikipedia search led me to conclude that in<br>
California that would likely be four years.<br>
<br>
So for overall repose, what about a cap of four years from date of<br>
ICANN action. Breach of fiduciary duty is not too far removed from the<br>
idea of breach of articles or bylaws.<br>
</blockquote>
<br></span>
Thank you for the kind words David, but this isn't really a compromise,<br>
because this is a rather binary question.<br>
<br>
The objection to repose is (in the main) an objection to repose in principle,<br>
not a quibble over how long it should be before it kicks in.<br>
<br>
Any form of words in which a claimant can be denied the opportunity to<br>
bring a claim on the grounds that it is too late, even if he was formally<br>
precluded from bringing it any earlier, is (for those who object to repose)<br>
fundamentally unacceptable in principle.<br>
<br>
Saying "well only for issues that take four years to implement" doesn't really<br>
compromise on this. In fact, in practice, it is likely to be the most controversial<br>
and difficult issue that will take longest to move from ICANN's decision-in-principle<br>
to implementation in practice.<br>
<br>
Sorry, I really do wish I could say something else. I do wish we could indeed<br>
find something that would satisfy ICANN Legal as well as the community (or at<br>
least, all those who used public comment to object to this).<br>
<br>
But "repose" is an abuse of the deadline for filing, it isn't really a<br>
deadline for filing, it's a narrowing of standing. I don't think it's<br>
even within our powers, within the bylaws, to accept this proposal.<br>
And if it were, it would still dishonour the transition settlement idea<br>
of ICANN being held to account to its bylaws by any materially affected party.<br>
<br>
Malcolm.<br>
-- <br>
Malcolm Hutty | tel: <a href="tel:%2B44%2020%207645%203523" value="+442076453523" target="_blank">+44 20 7645 3523</a><br>
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