[IOT] Thoughts on Rule 4 Time for Filing

Tue Nov 3 16:54:55 UTC 2020

Hi David
Thank you for sharing your thoughtful review of the timing issue.

All, I hope you will have had to time to review and consider David's views before our meeting later today.  Whilst I know that there are some differences of opinion on some of this, this gives a helpful starting point for us in picking the discussion back up.   In particular, as David reminds us, there are two main prongs to the timing issue, which I will take the liberty of restating:

Prong 1
The time within which a Claim must be filed after a Claimant becomes aware or reasonably should have become aware of the action or inaction giving rise to the Dispute - this is the Bylaws language and something we are specifically tasked with addressing in the Rules:

  *   Following second public comment, there is substantial support for this being 120 days (extended from 45 days)
  *   Some concerns raised on the last call that 120 days might not be sufficient at least for a Claim brought by the empowered community
  *   Should the proposed 120 days be tolled to account for other accountability mechanisms and if so which?
     *   Whilst the timing rules were different under the previous Bylaws, the (out of date) guidelines relating to the Cooperative Engagement Process (CEP), which is an expected pre-step to commencing an IRP, did allow for tolling at least in respect of that process.
     *   Other mechanisms to be considered may include the Request for Reconsideration, an Ombuds review, and requests under the Documentary Information Disclosure Policy.
     *   I would also like to flag the proposed appeals process being developed for the SubPro recommendations for future new gTLD rounds, since the impact of this on the timing of an IRP was specifically raised on a recent SubPro WG call.
Prong 2
Whether there should be an overall cut off to the time within which a claim can be filed (the repose), such that if a potential Claimant had not yet suffered "an injury or harm that is directly and causally connected to the alleged violation", and so was not yet eligible to be an actual Claimant under an IRP, or had not yet become aware/reasonably ought to have become aware of the action/inaction in question then they would be time barred.  If so, how long:

  *   Many of the comments in the second public comment supported the removal of the repose altogether
  *   Some, particularly RySG and Verisign supported some repose, but longer than 12 months.  24 or 36 months suggested.  Org also supports there being a repose.
  *   IPC favored removal of the repose, but if there is to be one then it should be longer than 12 months and should run from when the party is actually harmed (as opposed to the date of the action/inaction).
  *   As with Prong 1, should there be tolling for other mechanisms within Prong 2 and if so which
In considering Prong 2, we must consider whether this is permissible under the relevant section of the Bylaws, and indeed whether the intent of the IRP and principles such as fundamental fairness and due process positively support having some repose.

I look forward to discussing further with those who are able to make today's call.

Susan

Susan Payne
Head of Legal Policy
Com Laude | Valideus
D: +44 20 7421 8255
M: +44 7971 661175
E: susan.payne at comlaude.com<mailto:susan.payne at comlaude.com>

From: IOT <iot-bounces at icann.org> On Behalf Of McAuley, David via IOT
Sent: 02 November 2020 17:12
To: iot at icann.org
Subject: [IOT] Thoughts on Rule 4 Time for Filing

Hello IOT colleagues,

Prior to the IOT reconstitution I had taken a position (in my personal capacity) in favor of an overall time limitation for filing IRP claims.

Recently I took a new look at the issue - and on our call on October 6th said I would post my personal thoughts on the list. Here they are.

I remain in support of an overall time limitation - although 24 months may be more suitable than 12 months. I could support either. Here is my reasoning. Note that all portions marked in yellow below are emphasis added by me.

Bylaw 4.3:

Section 4.3(n)(iv)(A) states "(iv) The Rules of Procedure are intended to ensure fundamental fairness and due process and shall at a minimum address the following elements: (A) The time within which a Claim must be filed after a Claimant becomes aware or reasonably should have become aware of the action or inaction giving rise to the Dispute".

The phrase "at a minimum" means something, and I don't believe that this bylaw provision precludes us from imposing a reasonable overall time limitation in addition to establishing the time to file once the claimant is, or should be, aware of the action/inaction by ICANN.

Note also that the bylaws in effect prior to the IANA Transition had this provision<https://www.icann.org/resources/pages/bylaws-2016-02-16-en#IV> (at Article IV, Section 3.3) :

A request for independent review must be filed within thirty days of the posting of the minutes of the Board meeting (and the accompanying Board Briefing Materials, if available) that the requesting party contends demonstrates that ICANN violated its Bylaws or Articles of Incorporation. ...

So, this notion of an overall time limitation is not new to ICANN IRP. I argue that the language in Bylaw Section 4.3(n)(iv)(A) is not preclusive of an overall time limit. If it was meant to be preclusive then the insertion of the "at a minimum" language would have been contrary to that intent.

In my view, other provisions of Section 4.3(n) have a bearing here as well:

4.3(n)(i): ... [the rules for IRP shall] conform with international arbitration norms and [be] streamlined, easy to understand and apply fairly to all parties. ...

4.3(n)(ii): The Rules of Procedure shall be informed by international arbitration norms and consistent with the Purposes of the IRP.

These other provisions of Section 4.3(n) appear to establish reasonable guidelines for our work:

  1.  Conformance with international arbitration customs/best practices. Arbitrations typically arise in one of two contexts: the parties to a dispute agree ad hoc to arbitration (in which case timing is not an issue) or a contract term between them (or a  law or treaty) establishes arbitration as the method for dispute resolution. All contracts are subject to a body of national law somewhere in the world and most such bodies of law will have a statute of limitations on bringing civil contract or other actions. By adopting an outside limit on time to file I submit that we would be following customary practice.

  1.  Apply fairly to all parties:  ICANN, the only entity guaranteed to be a party in each IRP, is entitled to fundamental fairness and due process as well as claimants.

  1.  Consistent with Purposes of IRP: As you know, there are a number of purposes of IRP specified in Section 4.3(a). Here I want to point to three of them:

(vi) Reduce Disputes by creating precedent to guide and inform the Board, Officers ..., Staff members, Supporting Organizations, Advisory Committees, and the global Internet community in connection with policy development and implementation.

(vii)  Secure the accessible, transparent, efficient, consistent, coherent, and just resolution of Disputes.

(viii) Lead to binding, final resolutions consistent with international arbitration norms that are enforceable in any court with proper jurisdiction.
As Chris said on the most recent call, reasonable certainty is a goal here. And, in my opinion, finality and predictability are two very important elements of certainty in this context.  Certainty seems also important to the IRP Purposes of consistency, coherence, and just resolution of disputes.

How tenable will the notion of precedence be if established IRP decisions can be challenged long after development?

  1.  Ensure fundamental fairness: While I certainly agree that fairness should run to all 'parties,' I go further and argue that fundamental fairness in IRPs runs to broader communities.  As we saw in Bylaw Section 4.3(a)(vi) above, the notion of precedent is to inform not only ICANN but also SOs, ACs, and the global Internet community. They rely on a reasonably certain and predictable policy landscape to do their work and make their decisions. Allowing for stale complaints could unreasonably jeopardize that landscape.
My understanding of the argument in opposition of an overall time limitation is that a claimant could be time barred before it ever learns of the alleged harm. If we extend the overall cap to 24 months (or even 36 months) that should substantially mitigate this concern while at the same time establishing a fair balance between permitting a claimant to redress harm, and ensuring fairness to ICANN, the community and to the process itself.

And finally, since ICANN is governed by California law, statutes of limitations under that body of state law might help to inform the appropriate statute of limitations for lodging an IRP claim. Although there is no one single statute of limitation for a claim that is perfectly analogous to an IRP, similar provisions under California law reasonably support the conclusion that statutes of limitations vary and do not follow a single approach. In addition, an IRP claim might also be analogized to a claim under the California Administrative Procedures Act, pursuant to which an aggrieved party may seek recourse through an administrative action against a private party based on its failure to comply with applicable rules and regulations of the relevant agency. Of note, there is a two-year statute of limitations for filing damage complaints with the Public Utilities Commission.  (Cal. Pub. Util. Code § 735 (West))

When we get to drafting the Time for Filing Rule, I thus urge us to adopt this two-prong approach with the first prong being the days within which to file following becoming aware (or reasonably should have become aware) of the claim. And the second prong would be an overall time limitation in the nature of a statute of repose that the panel must apply irrespective party action, perhaps tollable for one thing only - the pendency of active CEP.

This is a challenging issue and I appreciate the good-faith arguments on both sides. These are my thoughts on this important topic.

Thank you and best wishes,
David

David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.
703-948-4154

________________________________
The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/iot/attachments/20201103/b4ca928b/attachment-0001.html>