[IOT] The latest IRP rulings

Tue Aug 9 20:41:42 UTC 2016

Hi Avri,

You ask an interesting question:

"Can a panel under the new IRP  make binding relief recommendations (not interim relief which seems well defined) for a complainant, or will they still be limited to decision requiring further consideration by the Board.  I did not see substantive decisions as prohibited as is the case currently, but also do not see where they are specifically enabled."

In my personal opinion the "bindingness" is provided for but I also will be anxious to see what Becky and the legal team say.

(Relief is another story - that is up to ICANN I think - the panel simply says whether or not an action or inaction was or was not consistent with Articles/Bylaws.)

The reason I think bindingness is provided for is the tie between the Supplemental Rules (admittedly just a draft at present) and the Bylaws.  

The draft supplemental rules in their current form say in Section 11 (Standard of Review), subsections a. and b., that the panel will decide whether the Covered Action constituted an action or inaction that violated the Articles or Bylaws - and that shall be decided "... in compliance with ICANN's Articles and Bylaws ...". 

In turn, the Bylaws provide in Section 4.3(a)(viii) that the IRP is intended to resolve disputes for reasons that include leading "to binding, final resolutions consistent with international arbitration norms that are enforceable in any court with proper jurisdiction."

The definition of PURPOSES OF THE IRP in supplemental rules Section 1 is also tied to Bylaw Section 4.3(a).

Beyond that, Bylaw 4.3(x) is also important - basically saying that "The IRP is intended as a final, binding arbitration process" to the extent allowed by law. It has several subsections, one of which recognizes that ICANN can "reject" the decision (4.3(x)(iii)) and another of which recognizes that the Claimant or community can appeal such a rejection to a court with jurisdiction (4.3(x)(iii)(C)). 

Court appeals are supposed to be conducted "without a de novo review of the decision of the IRP Panel or en banc Standing Panel, as applicable, with respect to factual findings or conclusions of law." (Section 4.3(x)(ii).   

As noted above, it will be good to hear from Becky and the legal team whether the question about binding rulings is sufficiently reflected as intended by the final CCWG report. 

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

-----Original Message-----
From: iot-bounces at icann.org [mailto:iot-bounces at icann.org] On Behalf Of avri doria
Sent: Tuesday, August 09, 2016 10:12 AM
To: iot at icann.org
Subject: Re: [IOT] The latest IRP rulings

Hi,

Thanks for the reply.

Yeah I was asked about adding members, had no idea how it was done, so asked.  So they would have to approach the CCWG chairs for such an indication if they wanted to join.  I will pass that on.  I understand that the CCWG chairs are probably subscribed to this list, so they can also respond if they wish.

Glad we are going to look at the implications of the recent IRP decisions. Seems it should have some impact on the whole discussion of discovery. I am curious to understand whether what we are putting in place prevents some of the mishaps that have been documented.

Have another question I was asked that I was uncertain about:

Can a panel under the new IRP  make binding relief recommendations (not interim relief which seems well defined) for a complainant, or will they still be limited to decision requiring further consideration by the Board.  I did not see substantive decisions as prohibited as is the case currently, but also do not see where they are specifically enabled.

Thanks

avri

On 09-Aug-16 09:39, Burr, Becky wrote:
> Yeah, the latest IRP declaration is pretty intense.  Good idea for the IOT to review.  I think official IOT participants are supposed to come from the CCWG, not through me.  
>
> -----Original Message-----
> From: iot-bounces at icann.org [mailto:iot-bounces at icann.org] On Behalf 
> Of avri doria
> Sent: Tuesday, August 09, 2016 7:07 AM
> To: iot at icann.org
> Subject: [IOT] The latest IRP rulings
>
> Hi,
>
> The latest rulings contain an amount of discussion of procedural issues.
>
> Will be be reviewing these to make sure that we have covered all the issue that exist in the status quo?
>
> Also I was asked, is the IOT still open for new participants?
>
> thanks
>
> avri
>
>
>
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