[IOT] Considerations for Rule 7

Tue Sep 8 17:18:01 UTC 2020

My apologies for the call in flight .. something has come up locally ...

On 9/8/20 4:17 PM, Susan Payne wrote:
> Liz, thanks for this useful set of principles that we should try to
> progress agreement on during our upcoming call.
> 
>  
> 
> *Susan Payne*
> 
> Head of Legal Policy*
> Com Laude | Valideus*
> 
> D: +44 20 7421 8255
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> 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 *Elizabeth Le
> *Sent:* 08 September 2020 15:38
> *To:* iot at icann.org
> *Subject:* [IOT] Considerations for Rule 7
> 
>  
> 
> 
>           Dear IOT members,
> 
> 
>            
> 
> 
>           Prior to considering specific line edits as proposed on Rule
>           7, we propose that we consider some of the principles behind
>           the proposed edits, to make sure that IOT concurs on the need
>           for, purpose and intended impact of the changes.  Below are
>           some of the topics we noted for discussion from Susan’s
>           strawperson, and some questions that were raised for us at
>           ICANN org during our review.
> 
>  
> 
>  1. *Role of Procedure Officer.  *Are we updating the role of Procedures
>     Officer?  If so, how?
>  2. *Page Limitation.  *We will remove the collective page limitation
>     (confirmed).
>  3. *Timing for Motion for Consolidation, Intervention and Participation
>     as an Amicus.  *What is the timeframe for seeking consolidation or
>     intervention?  Is there a different timeframe for requests to
>     participate as an amicus?
>  4. *Additional Procedure Needed? *Do we need to have additional
>     procedural steps detailed?  If so, what are the procedural steps
>     that are missing? 
> 
> ·       Do we need to detail out, as Susan suggests, required elements
> of the request?
> 
> ·       Should we be clearer in this Rule 7 about the types of
> considerations that are important for upholding the purposes of the IRP,
> and are there specific “purposes of the IRP” that we should specifically
> call out? For example, because IRP proceedings are binding, possibility
> of conflicting rulings or a race to a ruling that would render a
> separately pending IRP moot could be a factor that would tend toward
> consolidation.  Are there factors that might go against consolidation?
> Or other items that might support?
> 
>  5. *IRP Panel Recomposition: *Susan’s strawperson suggests specific
>     language regarding the possibility of changing the IRP Panel as a
>     result of consolidation or intervention.  Outside of conflict of
>     interest concerns that adding a new party to a proceeding might add,
>     are there other scenarios where the IOT believes that it is
>     appropriate to consider replacing an existing IRP Panel?  From the
>     ICANN org view, the more time that is allowed to pass between the
>     initiation of the first IRP and filing for consolidation or
>     intervention, the more important it becomes to have defined
>     expectations and limitations on seeking a new Panel.  From the ICANN
>     org side, we’d recommend a very narrow set of circumstances (likely
>     only conflict of interest related) for panel replacement orders. To
>     the extent re-empanelment is required, from ICANN org we’d recommend
>     reliance in full on Rule 3 instead of creating a new appointment
>     path, while also concurring on the exclusion of the PROCEDURES
>     OFFICER from that new IRP Panel. Some other considerations could
>     include:
> 
> ·       What would happen with issues already decided in the IRP by the
> “prior” panel?
> 
> ·       Who is responsible for the cost of bringing a second panel up to
> speed?
> 
> ·       How are the parties impacted in their legal spend? 
> 
>  6. *Scope of Intervening Claimant Filings: *On Intervention, the IOT
>     might wish to consider if limitations on the scope of the proposed
>     intervening claim are appropriate.  Should intervention be limited
>     only to those tailored to the issues already in DISPUTE, given that
>     IRPs are not about delivering relief to particular entities, but are
>     about challenging ICANN violations of Bylaws/Articles?
>  7. *Amicus as of Right: *Susan’s strawperson proposes a new
>     classification of persons allowed Amicus status as of right.  Does
>     the IOT agree that we need additional categories here, as there is
>     already discretion?  If so, what is the proper scope for addition,
>     and can it be quantified or measured objectively?
>  8. *Reduction of Duplication: *As a drafting note, for areas of similar
>     process as between any of the subparts of Rule 7, we can explore how
>     to reduce duplication of concept as between each subpart.
> 
>  
> 
> Best regards,
> 
> Liz
> 
>  
> 
> _                                _
> 
> Elizabeth D. Le
> 
> Associate General Counsel, ICANN
> 
> 12025 Waterfront Drive, Suite 300
> 
> Los Angeles, CA 90094
> 
> Direct Dial:  +1 310 578 8902
> 
>  
> 
>  
> 
>  
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>  
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