[IOT] Joinder issue

Wed Mar 29 13:39:06 UTC 2017

I agree with these points.

Purely  a drafting note -- it should be clear that the "parties" referred
to in item 2 are the parties in the underlying proceeding, and the "amici"
referred to in item 3 are the amici in the underlying proceeding.

I would suggest considering 45 days for the time period in item 6,
considering that SO/AC/SG/C parties can require levels of
approval/discussion beyond those of most other parties.

Geg

*Greg Shatan *C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc at gmail.com

On Wed, Mar 29, 2017 at 4:14 AM, McAuley, David via IOT <iot at icann.org>
wrote:

> Dear Members of the IRP IOT,
>
>
>
> In this email, I want to move forward and seek your input on the issue of
> “Joinder” that was mentioned in several public comments and that was raised
> in the last call Thursday March 23rd.
>
>
>
> The public comments on this topic were from (1) Fletcher, Heald & Hildreth
> <https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfAkzQ0N4xz2.pdf>,
> (2) the GNSO’s IPC
> <https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdft75S74tOev.pdf>,
> and (3) the GNSO’s NCSG
> <https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfLoCFUVHjfN.pdf>
> (these three raised other issues as well).
>
>
>
> The comments make these suggestions:
>
>
>
> ·         *Fletcher*: Provide actual notice to all original parties to an
> appeal to IRP of an underlying Third Party Proceeding (see expert panel
> decision appealability at Bylaw 4.3(b)(iii)(A)(3));
>
>
>
> ·         *Fletcher*: Provide mandatory right of intervention to all
> parties to the underlying proceeding being appealed to IRP;
>
>
>
> ·         *Fletcher*: Require IRP panel to allow all such parties to be
> heard before deciding on interim relief or protection;
>
>
>
> ·         *IPC*: Any third party “directly involved” in underlying action
> being appealed to IRP should be able to join or intervene as claimant of in
> opposition to claimant. (Multiple claimants should not have one collective
> 25-page limit for Written Statements);
>
>
>
> ·         *NCSG*: Right of intervention must be added for the winning
> party below. At the least they should be able to file briefs as *Amici *–
> meaning  “friends” of the panel;
>
>
>
> ·         *NCSG*: Emergency panels/interim relief requests must be openly
> heard with all relevant parties present.
>
> As mentioned in the call, we are directed by bylaws that provide for:
>
> ·         Just resolution of disputes (Section 4.3(a)(vii)); and
>
>
>
> ·         Fundamental fairness and due process (Section 4.3(n)(iv)).
>
> In addition, the bylaws specifically direct that the rules address “Issues
> relating to joinder, intervention, and consolidation of Claims…” (Section
> 4.3(n)(iv)(B)).
>
>
>
> The current draft
> <https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf> of
> the updated supplementary procedures deals with joinder etc. at section 7
> on page 8. The current draft leaves these matters up to a procedures
> officer and allows joinder by those who qualify as a claimant – which the
> winning party below is unlikely to be.
>
>
>
> With these things in mind, as a participant in this group I propose that
> we agree the following points and, at a suitable time, ask Sidley to draft
> appropriate language into the draft supplementary procedures. I believe
> these comments have made reasonable and persuasive points about ensuring
> that the winning party below can defend the judgment below and will likely
> be a more motivated party in this respect than ICANN, although ICANN will
> be motivated, of course, to defend the notion that its compliance with an
> expert panel would not violate the article or bylaws. Suggestions:
>
>
>
> 1.       That all parties to the underlying proceeding get timely notice
> (including copies of all pleadings and other filed documents) of the
> institution of IRP;
>
>
>
> 2.       That all parties have a right to intervene or file an amicus
> brief, as they elect. If they elect to become a party they take on all
> rights/obligations of parties;
>
>
>
> 3.       That all parties have a right to be heard in any petition for
> interim relief – whether amici can be heard on interim relief would be up
> to the panel or procedures officer (whichever is acting);
>
>
>
> 4.       That all parties each enjoy equivalent rights/obligations with
> respect to pleadings – e.g. length, manner of filing, etc.
>
>
>
> 5.       That other “interested” parties be able to petition the panel or
> procedures officer (whichever is acting) to intervene (as parties or as
> amici) and the decision in this respect will be up to the panel or
> procedures officer (whichever is acting).
>
>
>
> 6.       That such joining parties to be given a reasonable amount of
> time to file their pleading or brief but this can be a relatively short
> period. They will have actual notice and the time should run from that
> date. They will have been a party below and so are in some degree prepared
> on the issues. I suggest 30 days here.
>
>
>
> I welcome discussion on list and, if we need, on next call.
>
> David
>
>
>
> David McAuley
>
> International Policy Manager
>
> Verisign Inc.
>
> 703-948-4154 <(703)%20948-4154>
>
>
>
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