[IOT] IRP-IOT: Please share view on Amicus Participation

Sun Aug 27 16:07:08 UTC 2023

Hi all
Thanks to everyone for a good call last Tuesday.  We will be picking this up again on Tuesday 29th to get through the rules on Amicus participation, but it would be very helpful if you can continue to share thoughts on this over the mailing list before the call.

As currently drafted, our proposed Rules envisage that those with a material interest relevant to the Dispute have a right to participate as an Amicus, and that a subset of participants are deemed to have a material interest, such that they would be permitted to participate as of right without having to demonstrate to the Panel that they have a material interest.

The questions we were debating during our discussion of Rule 7 (25) were:

  *   If you can demonstrate you have a material interest relevant to the Dispute, are you automatically permitted to be an Amicus, or should there still be some Panel Discretion?
  *   If there is some Panel Discretion should the groups identified in (i) - (iii) be automatically permitted, i.e. no Panel discretion?  Would this be better expressed as a presumption that they have a right to participate, thereby retaining some minimal discretion for the Panel?
  *   Do we agree that (iv) effectively re-states the general eligibility for an Amicus, rather than identifying a specific group of interested entities, and so is not appropriate for the automatic permission/presumption
  *   Should the Parties have the opportunity to raise objections, to be taken into consideration by the IRP Panel?
  *   Does "material interest relevant to the Dispute" adequately cover the scenario Malcolm raised where the entity might be materially impacted by a potential interpretation of the Bylaws which might be reached by the Panel in deciding the Dispute?

For convenience, Rule 7 (25) is reproduced below (with a couple of edits in red that did have strong agreement on the last call):

Any person, group, or entity that has a material interest relevant to the DISPUTE, even if they do 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 in these sections 25 - 29. The purpose of participation as an amicus curiae is to assist the IRP Panel by offering information, expertise or other input that has a bearing on the issues in the DISPUTE. [For the avoidance of doubt, an amicus curiae is not a party to the DISPUTE.] 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:

i.                    A person, group or entity that participated in an underlying proceeding (a process-specific expert panel per ICANN Bylaws, Article 4, Section 4.3(b)(iii)(A)(3)) the outcome of which is material and relevant to the DISPUTE;

ii.                   If the IRP relates to an application arising out of ICANN's New gTLD Program, a person, group or entity that was part of a contention set for the string at issue in the IRP;

iii.                 If the briefings before the IRP PANEL significantly refer to actions taken by a person, group or entity that is external to the DISPUTE, such external person, group or entity; and

iv.                 A person, group or entity that is directly and materially impacted by the Covered Action which is the subject of the DISPUTE, but does not meet the requirements to be a CLAIMANT
Thanks

Susan Payne
Head of Legal Policy

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