[WP1] Thanks, next work steps (pls read)

[Malcolm Hutty]

On 17/06/2015 05:02, Greg Shatan wrote:
> Malcolm,
> 
> That's not at all what we have been advised.  I think you may be
> conflating several pieces of advice:
> 
> 1.  Only legal persons (i.e., people and legal entities) have the
> ability to bring suit.
> 2.  Members need to be legal persons.
> 3.  Members are legally able to bring suit to enforce the community
> powers we seek to put in the bylaws relating to new/amended bylaws,
> budget/strategic plans, and recall of some/all board members if these
> are disregarded by the Board.  

You omit the piece of advice to which I was referring: that the public
generally have no right to enforce the Bylaws of the company, such right
being reserved to members of the company.

It's possible that I have confused who said this, and that it was
actually a participant rather than our advisors, but I distinctly
remember this assertion being featured in our discussion.


> None of these are related to the issue at hand: what options are
> available to a party seeking to enforce a binding arbitration award
> secured in an IRP?
> 
> This is actually a fairly straightforward question, as long as such
> party is a legal person.  A random check of recent IRPs reveals that all
> of the parties were legal entities.  Litigation to enforce an
> arbitration result is a generally recognized cause of action, and I am
> confident that we have been advised that it would be available to
> parties prevailing in an IRP. 

I don't think we have received that advice so generally.

We *have* been advised that the court would generally respect the
outcome of the IRP as binding arbitration rather than re-litigating the
issue. But we haven't been advised which takes precedence in cases where
there is a conflict between the rule that non-members have no standing
in court to enforce the bylaws (if, indeed, this is a rule) and the
expectation that the court will respect arbitration.

In previous IRP cases, no such conflict arose. Where an IRP case is
brought by a gTLD applicant, that can be analysed as a contract dispute
between the applicant and ICANN. In such a case there is no dispute that
the applicant has standing before the court. Thus in those cases, the
only question is whether the case should be re-litigated or whether the
role of the court is simply enforce to the IRP decision as the outcome
of litigation. We have been advised that in these circumstances the
court will apply the outcome of the IRP.

It does not necessarily follow from this that the court will also
enforce an IRP decision arising out of a complaint about a breach of the
bylaws brought by a legal person who is not a member of the company, and
so would not ordinarily have standing before the court to litigate such
matters.

By way of illustration, consider the example of an person individual
domain registrant who has been denied a domain - or had their domain
suspended - pursuant to some future ICANN policy. Suppose that this
person wished to allege that the policy was itself invalid due to some
incompatibility with the bylaws. Would such a person be able to invoke
the IRP (as we intend) and if they won an IRP decision and ICANN chose
to disregard it, would such a person have standing to enforce the IRP
decision in court?

I am open to the possibility that the answer to these questions is "Yes"
in each case but, Greg, I don't believe we have had advice that confirms
this yet; certainly not clearly enough to satisfy me that we are not
jumping to unwarranted conclusions.

Perhaps it would be best if I simply formulate the relevant questions
for our advisors:

1. Our intent is to make the IRP available to all persons who have been
materially affected by ICANN's actions, irrespective of whether they are
members of the company, so that the IRP may consider complaints about
breaches of the bylaws that affect/harm such persons. Can we indeed make
this available to all such persons?

2. In the event that an IRP case was brought by such a person and was
successful, would such a person (being a legal person but not a member
of the company) still have standing before the court even if the
complaint against ICANN was of a nature for which, absent the IRP, that
person would have no standing against ICANN in court?

3. If the standard we set for whether an IRP case should be heard is
whether the complainant is "materially affected" by ICANN's action,
would a court simply follow the IRP panel's decision as to whether a
complainant was indeed "materially affected"?
- If an IRP panel decides that a person is not "materially affected",
might a court decide that that person actually is materially affected
and order the IRP to hear the case?
- If an IRP panel decides that a person is "materially affected" and
that person subsequently wins the IRP case, might a court still decide
that the person was not "materially affected" and as a consequence
refuse to enforce the IRP decision for his benefit nonetheless?


Kind Regards,


Malcolm Hutty.



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            Malcolm Hutty | tel: +44 20 7645 3523
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