[IOT] Thoughts on comments regarding challenges to Consensus Policy

[Malcolm Hutty]

On 08/01/2018 15:48, McAuley, David via IOT wrote:
>  1. On/notice/, page 6 – 7 – Their comment (essentially to provide
>     actual notice to the SOs, their constituent bodies, and the ICANN
>     community that developed the consensus policy under challenge) seems
>     reasonable insofar as the SOs go, along the lines of Notice that we
>     have discussed already – we would look to Sidley for language and
>     they can consider suggested text from this comment.

Broadly speaking I'm OK with this, but placing the burden on the
Claimant to provide copies to all and sundry seems onerous; it just
seems to create unnecessary opportunities for the Claimant to commit a
technical error. Better to have the Procedures Officer satisfy any such
requirements.


>  2. On/mandatory right of intervention/ (pages 7-8) – This also seems
>     reasonable along the lines of intervention we have discussed
>     already, but in my opinion the intervention option should be given
>     to SO(s) (chairs) involved, not beyond that (the comment asks that
>     those whose interests are represented in or affected by the
>     consensus policy also be able to intervene).  Beyond that, the
>     comment goes on at page 7 to make four specific suggestions: (1) SO
>     Council involved can participate in selecting IRP panelists; (2)
>     these ‘parties’ can submit ‘friend of the IRP’ briefs; (3) these
>     ‘parties’ can participate in hearings; and (4) the ‘parties’ should
>     have similar response length-rights to claimants. In my view the
>     role in selecting panelists would be unworkable and the others
>     should be up to the panel’s discretion. 

We discussed this topic at our last, inquorate meeting, and we're not
done yet.

I'm fairly indifferent as to whether GNSO constituencies need an
*automatic* right to intervene, at least as long as we are not too
restrictive towards those who can demonstrate a material interest.
To my mind, that requires opening the right to intervene to those with a
material
interest in the outcome of the case, rather than restricting it only to
those who have been harmed similarly to the Claimant.

I have thought of a scenario that illustrates the distinction, that
perhaps we could discuss in our next meeting.

  
>  3. On /limits on panel action on overturning consensus policy/ (pages 8-9):
> 
>                                                                     
> i.      On this one, I think the four numbered recommendations on page 8
> should not be accepted. 

I agree, for roughly the same reasons I gave in my email sent a few
minutes ago as to why we should not add new provisions in response to
the points raised by NCSG: I think Fletcher, Heald & Hildreth's approach
invites the IRP Panel and the Board to redraft community policy. No. It
also appears to encourage the Panel to recommend that a policy in
violation of the Bylaws ought to be continued nonetheless. All that
seems wrong to me, and inconsistent with the Bylaws.

Malcolm.


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            Malcolm Hutty | tel: +44 20 7645 3523
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