[IOT] First reading complete on timing issue

[Robin Gross]

I agree with the concerns Malcolm has raised below.

Thanks,
Robin

> On Feb 22, 2018, at 11:24 AM, Malcolm Hutty <malcolm at linx.net> wrote:
> 
> Please see below the notice that was given after first reading and
> before second reading.
> 
> It was given with a whole week's notice.
> 
> The second reading meeting was declared quorate.
> 
> 
> 
> 
> -------- Forwarded Message --------
> Subject: [IOT] First reading complete on timing issue
> Date: Mon, 5 Jun 2017 14:47:52 +0100
> From: Malcolm Hutty <malcolm at linx.net>
> To: iot at icann.org <iot at icann.org>
> 
> 
> Dear all,
> 
> The purpose of this mail is to inform you all, particularly those that
> do not regularly attend the teleconference calls, that at our meeting on
> Thursday 25th May we gave a first reading to an outcome on the timing
> issue, and to notify you that we have a second reading scheduled for
> Monday 12th June at 19:00 UTC.
> 
> You can see the text in the attached slides.
> 
> Our first reading text responds to criticism we received from the first
> draft public comment by:
> 
> 1) Lengthening the time claimants have to file after they become aware
> that they have been harmed as a consequence of an an alleged breach of
> ICANN's bylaws from 45 days (our original proposal) to 120 days.
> 
> 2) Tightening the above requirement, by starting the clock when the
> claimant "ought reasonably to have been aware", if that is sooner than
> when they actually did become aware.
> 
> 3) Basing the time the clock starts running exclusively on when the
> claimant became aware or ought reasonably to have been aware of being
> harmed.
> 
> Please note that point 3 drops a proposal from our previous draft for a
> "right of repose" for ICANN, under which cases would be denied a hearing
> if they were not brought within one year of the action or decision by
> ICANN that is alleged to be in breach of the Bylaws.
> 
> The right of repose was heavily criticised in the public comment, in
> part because it could have the effect of preventing a case that
> challenges an ICANN decision or policy from ever being heard, no matter
> how promptly it was filed (if, for example, implementation was delayed
> for a year so that nobody was directly harmed until more than a year
> after ICANN's initial decision). A claimant is only permitted to bring a
> case if they are "materially affected" themselves.
> 
> A separate possible reason for dropping the right of repose is that
> Sidley, our own independent legal counsel, also advised us that it is
> inconsistent with the bylaws - which would make it unacceptable.
> According to Sidley, the bylaws require that any deadline be based on
> the claimant being aware of the harm. ICANN's legal department have said
> they disagree with Sidley's interpretation of the bylaws. [*]
> 
> Please find attached the slides from last Thursday's meeting. The third
> and final slide shows the text that was given first reading.
> 
> If you wish to object to second reading being given please speak up now,
> and at the next call on 12th June.
> 
> Kind Regards,
> 
> 
> Malcolm.
> 
> [*] First Sidley statement can be seen here:
> http://mm.icann.org/pipermail/iot/attachments/20170106/9dcc4fb4/Sidley-ResponsetoCertifiedQuestionofCCWGIRPIoT-January42017-0001.pdf
> 
> There was a second Sidley statement, further emphasising this point,
> sent to David McAuley by Holly Gregory on 6th April. This hasn't been
> sent to the list
> 
> ICANN statement disagreeing with Sidley can be read here:
> http://mm.icann.org/pipermail/iot/2017-May/000217.html
> 
> -- 
>            Malcolm Hutty | tel: +44 20 7645 3523
>   Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange | http://publicaffairs.linx.net/
> 
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> 
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