[IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

Tue Feb 2 02:18:18 UTC 2021

We’re doing some work with the great compilation that Bernard put together to see if we can provide some summarization, but to contribute a bit to the conversation prior to that being available, I wanted to reaffirm a couple of the challenges that I recalled working through as we were addressing this issue with in the “prior” IOT.

IRPs are unique in the fact that there are only two sides under dispute: Either ICANN violated its Bylaws/Articles or it didn’t.  IRPs are not akin to litigation where there could be multiple rights and multiple forms of justice served in an outcome.  IRPs are binary, and the rules for efficient, fair IRPs need to recognize the unique, binary nature of disputes.

Of course, the ICANN system itself is not so binary.  In the most frequent uses of the IRP to date, if a gTLD application is “lost” and that “losing” party challenges ICANN’s act, then the entity/entities still on track to run that gTLD can be impacted by a decision that ICANN’s act that caused the “loss” was against Bylaws – particularly if the remedy for that act involves redoing a portion of a selection process or could change who may be the ultimate operator.  We can imagine other non-gTLD scenarios where an entity might be impacted by ICANN’s having to review the decision that a panel determined caused a Bylaws obligation, such as a decision based on recommendations from an ICANN policy development body, for example.

The earlier iteration of the IOT considered what it meant to have the right people/entities present even when party status couldn’t be achieved, or to afford due process within an IRP, with the supplemental procedures in place today as the outcome of that effort.  We see entities allowed to present to the panel as of right, or standards that the panel can consider to allow presentation. To allow a new role of “Interested Entity” raises different concerns – to what extent should ICANN resources be used (as IRP panel costs are heavily funded by ICANN, therefore the ICANN community) for proceedings where a third party is participating to protect its own rights or interests, as opposed to asserting a claim against ICANN?  How does this contribute to the efficiency of proceedings, or to a “yes or no” on whether ICANN acted properly?  Can we guide the panel in the scope of potential amici participation that is left to its discretion, without adding in an untested level of participation using a new term?

Taking Helen’s point that words and practice matter, it also matters that we do not introduce concepts (such as the procedures officer) that a panel doesn’t understand well in practice, or that we’d require to be used differently from normal practice.  For example, intervention typically is weighed upon not just whether an entity has a right at stake in the matter, but whether complete relief can be afforded in that entity’s absence.  With an IRP, the answer to whether complete relief can be afforded without a third party’s participation will [almost] always be yes, as the only relief available is a declaration as to whether ICANN did or did not act in violation of Bylaws/Articles.

Looking forward to continuing the conversation during our next call,

Sam

From: IOT <iot-bounces at icann.org> on behalf of "Lee, Helen via IOT" <iot at icann.org>
Reply-To: "Lee, Helen" <hjlee at verisign.com>
Date: Tuesday, January 19, 2021 at 5:56 AM
To: "iot at icann.org" <iot at icann.org>
Subject: Re: [IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

Dear all,

During the consolidation subgroup meeting last week, I raised a point regarding amicus participation in IRPs, which some of us agreed would greatly benefit from discussion with the larger group. Accordingly, I have outlined my points below for discussion:

In the minds of most, including international arbitrators and at least US based lawyers, “amicus” suggests a limited role that may be inconsistent with what is fair in a particular dispute, or may be inconsistent with due process. Indeed, the term “amicus” has specific meaning in the law; traditionally, amici are given very limited participation, whether in court or arbitration. While I am unclear regarding the limitations of the ICANN process associated with changing the term “amicus” itself, assume for purposes of illustration that we call “amicus” instead “Interested Entity.” Interested Entity should be allowed a level of participation appropriate to how its interests may be affected by the outcome -- without the built in bias standard plainly suggested by the term amicus. Indeed, a set of rules that allows a serious impact on legal rights based on little participation may, as a system, be a violation of due process and subject to being stricken down.

Rule 7 of the Interim Procedures define amicus as below:

“Any person, group, or entity that has a material interest relevant to the DISPUTE but does not satisfy the standing requirements for a CLAIMANT set forth in the Bylaws may participate as an amicus curiae before an IRP PANEL, subject to the limitations set forth below. Without limitation to the persons, groups, or entities that may have such a material interest, the following persons, groups, or entities shall be deemed to have a material interest relevant to the DISPUTE and, upon request of person, group, or entity seeking to so participate, shall be permitted to participate as an amicus before the IRP PANEL…” https://www.icann.org/en/system/files/files/irp-interim-supplementary-procedures-25oct18-en.pdf [icann.org]<https://urldefense.com/v3/__https:/www.icann.org/en/system/files/files/irp-interim-supplementary-procedures-25oct18-en.pdf__;!!PtGJab4!qMVRW04BtUw2gZm3U5-xmaQTFbXgQEaJTlc_h2S-EDsq0odd8ak0Lixf8PKhNDAFv3BtPRlz3A$>

The drafting history of Rule 7 (and others who participated in that process can speak to it with far more authority than I may be able to) indicates it is designed to accommodate broader third party involvement than the expression “amicus curiae” is traditionally understood to include. The Panel’s decision in Phase I of Afilias matter concluded “nature and breadth of the amicus participation that should be afforded to the Applicant Amici in this
case – whether it be under the provisions of Rule 7, properly interpreted, as an exercise of the Panel’s discretion under Section 4.3(o)(v) of the Bylaws, or under relevant principles of international law” should be “broadly accorded.” https://www.icann.org/en/system/files/files/irp-afilias-panel-decision-phase-1-redacted-12feb20-en.pdf [icann.org]<https://urldefense.com/v3/__https:/www.icann.org/en/system/files/files/irp-afilias-panel-decision-phase-1-redacted-12feb20-en.pdf__;!!PtGJab4!qMVRW04BtUw2gZm3U5-xmaQTFbXgQEaJTlc_h2S-EDsq0odd8ak0Lixf8PKhNDAFv3BtoGy6XQ$>

While my argument is not that claims of amici should routinely equal those of full intervenors, I may start the conversation by suggesting that we devise a truly flexible standard for participation by the Interested Entity. Would it be possible to build into these rules a concept that the degree of participation should be flexible and encompass that participation necessary fully to protect the rights and interests of the amici, including, where appropriate to that end, the right fully to participate in all proceedings as a party?  We could develop a standard for involvement by an amicus that avoids the definition likely to be given the term absent an express definition or standard. It would also be helpful to add a statement that the category of participation is unique to the IRP process, given its specific limitations, and therefore to be defined by the rules themselves and not by reference to other forms of participation in courts or arbitrations such as “amici.”

Helen

Helen J. Lee
Director and Senior Corporate Counsel
hjlee at Verisign.com<mailto:hjlee at Verisign.com>

t: 703-948-4242
12061 Bluemont Way, Reston, VA 20190

Verisign.com [verisigninc.com]<https://urldefense.com/v3/__http:/www.verisigninc.com/__;!!PtGJab4!qMVRW04BtUw2gZm3U5-xmaQTFbXgQEaJTlc_h2S-EDsq0odd8ak0Lixf8PKhNDAFv3B4EcX1qA$>

[Verisign™]

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From: IOT <iot-bounces at icann.org> On Behalf Of Bernard Turcotte
Sent: Monday, January 18, 2021 2:52 PM
To: iot at icann.org
Subject: [EXTERNAL] [IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

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Proposed agenda;

1.Review agenda and updates to SOIs
2. Action items from the last meeting:

  *   All - review the public comment input from both public comment periods on the topic of the repose
  *   Staff – Prepare a scorecard to track progress vs major items.
3. Brief update on consolidation sub-group meeting.
4. Continue discussions on the time for filing issue:

  *   Review and discuss public comment input on the repose (prong 2) – IOT members should attend the meeting prepared to identify, for discussion, those comments that they consider to be meaningful n this topic
  *   Time permitting, begin discussion and review public comment input on time for filing from the date Claimant knew/ought reasonably to have known (prong 1)
5. AOB
6. Next Meeting  - Tuesday 2 February 1900 UTC

Bernard Turcotte
ICANN Support to the IOT

For
Susan Payne
Chair IOT

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