[IOT] Confirming that IRP Qualifies as an Arbitration that can be enforced by Courts

[Greg Shatan]

All,

This is the question I was going to raise on the last call, but we ran out
of time.

This question may already have been answered, but I think it is important
to confirm that the "new and improved" IRP can be enforced in courts.  This
is a critical feature of the Accountability mechanisms.

The old IRP was not capable of being enforced, because it was not binding
(one of several defenses against enforcement of an arbitral award); there
may have been other reasons, but I don't know them.

The new IRP is binding, so that issue is resolved.  However, I don't recall
whether we got an opinion (from Jones Day, Sidley or Adler & Colvin) that
the IRP now meets all criteria for enforceability under applicable laws (at
a minimum the Cal Arbitration Act, the Fed Arb Act, and the 2-3 leading
international Conventions relating to arbitral awards).  This would include
affirming that the common defenses would not be available (recalling that
"non-binding nature" is a defense to be raised by the party not enforcing
the award, rather than a requirement placed on the filing party).

If we have an opinion (formal or otherwise) of counsel and someone could
point me to it that would be great.

Lastly, we need to have counsel confirm that our rules do not inadvertently
remove the IRP from enforceability or provide defenses that the
non-enforcing party can raise.

Greg
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/iot/attachments/20170526/5d116353/attachment.html>