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

[Greg Shatan]

The issue of what happens to the IRP time period if the potential
Complainant requests a CEP is handled in the CEP rules and procedures,
found at https://www.icann.org/en/system/files/files/cep-11apr13-en.pdf:

If ICANN and the requestor have not agreed to a resolution of issues upon
the conclusion of the cooperative engagement process, or if issues remain
for a request for independent review, the requestor’s time to file a
request for independent review designated in the Bylaws shall be extended
for each day of the cooperative engagement process, but in no event, absent
mutual written agreement by the parties, shall the extension be for more
than fourteen (14) days.

The issue of "knowledge" (or "awareness") is often dealt with as Bruce
suggests -- by requiring either "actual knowledge" (when the complainant
actually knew) or "constructive knowledge" (when the complainant reasonably
should have known).  If either of these time periods expires, the
complainant can't bring an action.

Greg

On Sat, Jul 25, 2015 at 12:42 PM, Burr, Becky <Becky.Burr at neustar.biz>
wrote:

>   The more I think about this 30 day thing, the more concerned I get – we
> need to provide for tolling the period for the pre filing mediation/CEP
>
> J. Beckwith Burr
>
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  /
> becky.burr at neustar.biz / www.neustar.biz
>
>   From: Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au>
> Date: Saturday, July 25, 2015 at 3:31 AM
> To: "WP2 at icann.org" <WP2 at icann.org>
> Subject: Re: [WP2] current state of IRP checklist plus sample bylaws
> language and the comment summary
>
>   Hello Becky,
>
>
>
> 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?     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.
>
>
>
> Shouldn’t there be some limit based on what is reasonable – e.g 30 days
> after the requesting party would reasonably become aware … etc
>
>
>
> Alternatively – maybe leave the current language and increase the time
> period – e.g. from 30 to 60 or 90 days.
>
>
>
>
>
> Regards,
>
> Bruce Tonkin
>
>
>
> _______________________________________________
> WP2 mailing list
> WP2 at icann.org
> https://mm.icann.org/mailman/listinfo/wp2
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/wp2/attachments/20150726/23468339/attachment.html>