[IOT] Use Case on Time for Filing IRP with an Outer Limit

[Elizabeth Le]

Dear IOT members,

During our last IOT discussion, ICANN org took an action item to provide in writing the use case on the time for filing an IRP with an outer time limit under the EduTania scenario (Scenario 1) set forth by Malcolm.  This example assumes that the current 120 day/1 year limitation is in place, though the timing could change based on the final outcomes of the IOT’s deliberation.

Though ICANN approved the program five years before, in that fifth year ICANN org implements the 5-by5-by5 program in Ruritania. That act of implementation is an ICANN staff action that could be challenged under IRP, assuming the claimant meets the other standing requirements.  Specifically, the claimant’s filing of an IRP would be considered timely (i.e., not capable of challenge on timing grounds) so long as it filed within 120 days after the claimant became aware of the material effect of action which is not more than 12 months from the date of the action (i.e., ICANN’s introduction of the program into Ruritania). The claimant, of course, has other procedural items it must fulfill, such as alleging the harm caused by the act and that ICANN’s act was outside of the Bylaws/mission, but those obligations exist separate from the timing issue.

As part of its timely IRP case, the claimant will be able to challenge the program and its implementation as applied to Ruritania.  So, while the claimant would be time barred from challenging the Board’s initial adoption of the program five years prior or potentially how the program was implemented in prior years (depending on the specific dates of roll-out), the claimant would not be time barred from challenging the year 5 implementation.  If there is Panel declaration in the claimant’s favor (i.e., that ICANN did in fact violate its Articles or Bylaws in the implementation), the ICANN Board would likely evaluate how that declaration impacts both the specific implementation of the program and well as the program as a whole.

This example demonstrates that there are many touch points along the way where an action may be taken by either the Board (the initial approval) or the org (new implementation action) that supports a claimant’s ability to act in a timely manner while challenging ICANN’s accountability.  Claimants can challenge ICANN’s actions without introducing time frames (or lack thereof) for challenges that diminish the certainty of ICANN’s actions. It also reduces the need to create new specific briefing processes to consider and weigh timeliness of claims, so that panels can more quickly proceed to the substantive merits.

Best regards,
Liz

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Elizabeth D. Le
Associate General Counsel | ICANN
Los Angeles, CA

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