[IOT] On elements of an IRP claim
Greg Shatan
gregshatanipc at gmail.com
Tue Apr 10 19:01:33 UTC 2018
David,
I think this makes good sense. I agree in part with Kavouss that part of
the ICDR notice should be retained. On reviewing those elements, the only
that I think should be added is the one requiring names and addresses, etc.
of the parties and their representatives. The others either don’t fit or
are already covered.
Since this is a “notice pleading” we should keep it lightweight. Thus, I
would not be in favor of requiring research and presentation of precedent
(“similar cases”). There might be utility in requiring reference to any
cases currently before the IRP making substantially similar claims. This
would promote judicial economy and potential joining of cases.
I think the elements suggested are innocuous enough that a full comment
period shouldn’t be needed. It would be helpful to understand the
procedure if any to amend the rules and see if we can use that. There
should at least be notice of the change and some opportunity to comment.
Greg
On Tue, Apr 10, 2018 at 2:41 PM McAuley, David via IOT <iot at icann.org>
wrote:
> Thank you Kavouss for these thoughtful suggestions.
>
>
>
> I am tied up right now but will give these some thought and react to them
> later this week. And we can also discuss on next call – but I will respond
> soon.
>
>
>
> Best wishes,
>
> David
>
>
>
> David McAuley
>
> Sr International Policy & Business Development Manager
>
> Verisign Inc.
>
> 703-948-4154
>
>
>
> *From:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> *Sent:* Tuesday, April 10, 2018 10:00 AM
> *To:* McAuley, David <dmcauley at Verisign.com>
> *Cc:* iot at icann.org; aloup at usc.edu
> *Subject:* [EXTERNAL] Re: [IOT] On elements of an IRP claim
>
>
>
> Dear David,
>
> Thank you very much for your message.
>
> Good catch .These elements are In fact missing or not currently clearly
> indicated
>
> I reply as follows:
>
> 1. Do we need to refer the IOT bindings to public comment
>
> My insight is yes unless unaninously/ full consens decided otherwise
>
> 2. What are the relevant elements.
>
> 2.I suggest you keep what are currently available in standard
> International Arbitration Rules of the ICDR for inclusion in a Notice a
> demand that the dispute be referred to arbitration; you may delete with
> revision marks those irrelevant or ....
>
> 2.2 add what you proposed
>
> 2.3 I add another element to your suggested item
>
> as follows :
>
> A REFERNCE TO ANY SIMILAR CLAIMS ALREADY SUBMITTED TOGETHER THE RESULTING
> DECISION
>
> 3.Post them on the list for a week
>
> 4. Comeback with suggestions from IOT member to add . delete or modify
>
> 5. Take up the compilation
>
> 6.Discuss them at our next meeting
>
> 7.kAVOUSS
>
>
>
>
>
> 1.
> 2.
> 3.
> 4.
> 5. *the names, addresses, telephone numbers, fax numbers, and email
> addresses of the parties and, if known, of their representatives; *
> 6.
> 7.
> 8.
> 9.
> 10. *a copy of the entire arbitration clause or agreement being
> invoked, and, where claims are made under more than one arbitration
> agreement, a copy of the arbitration agreement under which each claim is
> made; *
> 11. *a reference to any contract out of or in relation to which the
> dispute arises; *
> 12. *a description of the claim and of the facts supporting it; *
> 13. *the relief or remedy sought and any amount claimed; and *
> 14. *g. optionally, proposals, consistent with any prior agreement
> between or among the parties, as to the means of designating the
> arbitrators, the number of arbitrators, the place of arbitration, the
> language(s) of the arbitration, and any interest in mediating the dispute.f
> Arbitration. that includes *
>
>
>
>
>
>
>
> On Tue, Apr 10, 2018 at 3:32 PM, McAuley, David via IOT <iot at icann.org>
> wrote:
>
> Dear members of the IRP IOT,
>
>
>
> As mentioned, I want to run an idea on this list about treatment of
> elements of an IRP claim.
>
>
>
> It is a matter we have not yet specifically addressed as part of the
> supplementary rules - the ‘required elements of a Claim.’
>
>
>
> Bylaw 4.3(n)(iv)(C) says as follows:
>
>
>
> *(iv) The Rules of Procedure are intended to ensure fundamental fairness
> and due process and shall at a minimum address the following elements:*
>
> *…*
>
> *(C) Rules governing written submissions, including the required elements
> of a Claim, other requirements or limits on content, time for filing,
> length of statements, number of supplemental statements, if any, permitted
> evidentiary support (factual and expert), including its length, both in
> support of a Claimant's Claim and in support of ICANN's Response;*
>
>
>
> Keeping in mind that our task is to create ‘supplementary’ rules, it is
> worth noting that the standard International Arbitration Rules of the ICDR
> address the particulars that need to be stated in a Notice of Arbitration.
> They include:
>
>
>
> 1. a demand that the dispute be referred to arbitration;
> 2. the names, addresses, telephone numbers, fax numbers, and email
> addresses of the parties and, if known, of their representatives;
> 3. a copy of the entire arbitration clause or agreement being invoked,
> and, where claims are made under more than one arbitration agreement, a
> copy of the arbitration agreement under which each claim is made;
> 4. a reference to any contract out of or in relation to which the
> dispute arises;
> 5. a description of the claim and of the facts supporting it;
> 6. the relief or remedy sought and any amount claimed; and
> 7. g. optionally, proposals, consistent with any prior agreement
> between or among the parties, as to the means of designating the
> arbitrators, the number of arbitrators, the place of arbitration, the
> language(s) of the arbitration, and any interest in mediating the dispute.
>
> These are not an exact fit for IRP, and of course some are inapplicable to
> IRP (e.g., an amount claimed).
>
>
>
> (The current supplementary rules for IRP
> <https://www.icdr.org/sites/default/files/document_repository/Supplementary_Procedures_ICANN_Independent_Review_Process.pdf>
> – those in effect now, not the ones we are drafting for the new IRP – don’t
> specifically deal with ‘elements’ although Section 5 (Written Statements)
> presumably covers the topic.)
>
>
>
> I propose that we add a section on elements to the draft supplementary
> rules. This seems to me to be an administrative task that would not need to
> be subject to community comment.
>
>
>
> I am asking for you feedback then on two issues:
>
>
>
> 1. Can my suggested addition (below) be added to the Updated
> Supplementary Procedures without public comment; and
> 2. Is the language below acceptable to you?
>
> Here is what I suggest for elements:
>
>
>
> That we add a new section under the definition of DISPUTES in section 1.
> Definitions in the draft Updated Supplementary Procedures
> <https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf>
> as follows:
>
>
>
> (D) A written statement of a DISPUTE shall contain at least the following
> information:
>
>
>
> 1. A demand that the DISPUTE be referred to Independent Review
> pursuant to Bylaw section 4.3 (or Annex D, Section 4.2 for Empowered
> Community claims);
> 2. a reference to any ICANN contract, ICANN policy, ICANN action or
> inaction, or decision by a process-specific expert panel out of or in
> relation to which the DISPUTE arises; and
> 3. a description of the claim and the facts supporting it and how such
> contract, policy, action or inaction, or decision violate(s) ICANN’s
> Articles of Incorporation or Bylaws;
>
> These elements don’t address PTI service complaints or IANA Naming
> Functions contract complaints, but we can address that when the IOT later
> addresses any ‘specialized’ rules noted in Bylaw 4.3(n)(ii).
>
>
>
> Please weigh in on list.
>
>
>
> Thank you and best regards,
>
> David
>
>
>
> David McAuley
>
> Sr International Policy & Business Development Manager
>
> Verisign Inc.
>
> 703-948-4154
>
>
>
>
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