[WP2] current state of IRP checklist plus sample bylaws language and the comment summary

[Malcolm Hutty]

On 25/07/2015 08:31, Bruce Tonkin wrote:
> The proposed bylaws language change with respect to the timing of an IRP
> proceeding:
> 
>  
> 
> “A request for A request for independent review must be filed within
> thirty days of the posting
> 
> of the minutes of the Board meeting (and the accompanying Board Briefing
> 
> Materials, if available) thatthe requesting party becoming aware of the
> action
> 
> that it contends demonstrates that ICANN violated its Bylaws or Articles of
> 
> Incorporation. Consolidated requests may be appropriate when the causal
> 
> connection between the circumstances of the requests and the harm is the
> same
> 
> for each of the requesting parties.”
> 
>  
> 
> How would you determine when a “requesting party” becomes aware of an
> action?     

This is a factual matter, and would be decided on the balance of
probabilities. So if it were disputed, an early matter for the IRP to
decide would be whether the applicant was out of time.
This is perfectly normal for both courts and other alternative dispute
resolution systems.

> I expect it would be hard to determine when that event would
> happen – so this feels a little like that a party can file at any time
> after a decision – potentially years later.    This could have quite
> negative effect on a third party.   E.g if a new gTLD was allocated to
> an applicant, and then the requesting party complains years later.

It seems very unlikely that anybody would be a materially affected party
in the decision to award a gTLD other than the winning bidder and any
losing bidders. They would clear know at the time the winner was announced.

On the other hand, there are other kinds of possible dispute involving
non-contracted parties: in particular, the new IRP is supposed to
protect against scope creep by ICANN for the benefit of non-contracted
parties too.

If ICANN introduced some new policy that harmed a particular class of
registrants, the registrant might indeed only experience that harm and
become aware of it years later, and they shouldn't be denied any
possibility of recourse. That would be grossly unfair to them, and
certainly give rise to complaints that ICANN only accepted
responsibility to its own 'insiders'.

In practice, I doubt this will cause the practical difficulty you fear:
when a law is passed that is "unconstitutional", it is usually
controversial at the time, early legal challenge is likely, and heaviy
delayed legal challenge is less likely to succeed. But the clock on a
claim always starts counting when the party is injured, not when the law
giving rise to injury is enacted. The IRP should follow the same principle.

Malcolm.
-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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