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

[Greg Shatan]

Malcolm.

I'm happy to certify the questions to our outside counsel.  I note however
that the basis for the current IRP is that a Board action has been "alleged
by an affected party to be inconsistent with the Articles of Incorporation
or Bylaws."  So, it is not correct to say that these can be viewed as
contractual disputes (putting aside the issue that many of the IRPs at
least lately have been initiated by those who wish to contract with ICANN
to run a TLD but were rebuffed).  However, I would agree that these are in
essence, "private" causes of action in that they relate to an issue between
one party and ICANN.  Philosophically, these can be distinguished from IRPs
initiated to challenge a broader decision by the Board (e.g., to open a new
office).  However, the "legal" basis for the IRP appears to be the same,
unless we write the rules to make a distinction.  This leaves me wondering
whether some IRP decisions will be enforceable by the courts (as binding
arbitration generally is) and others will not.  So I suppose an additional
question might be:

4.  If all IRPs are grounded in an allegation that a Board action is
"inconsistent
with the Articles of Incorporation or Bylaws," is it possible that some IRP
results can be treated as the result of binding arbitration that can be
enforced in a state or federal court of competent jurisdiction, while
others cannot?  If so, is this distinction based on the nature of the
complaint (dispute between ICANN and the complainant (e.g., refused
application) vs. challenge to broad ICANN Board action) or on the posture
of the complainant (member of ICANN vs. non-member; and/or legal person vs.
not-legal-person)?

Greg

On Wed, Jun 17, 2015 at 5:35 AM, Malcolm Hutty <malcolm at linx.net> wrote:

>
> 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.
>
>
>
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
>
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>
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