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

Tue Aug 29 12:12:51 UTC 2023

Thank you, Susan.

I agree with Becky that someone must make the call on materiality and the panel is best placed to do that.

As regards automatic amicus status on the showing of materiality, I personally would leave a bit of discretion to the panel. What if twenty entities demonstrate materiality on a jointly held point of view – does the panel have to take all twenty briefs? I would say the panel should be able to limit participation once they are satisfied that all legitimate and material points of view are being expressed competently and diligently.

Consequently, I think your point about a presumption for the groups in (i) – (iii) makes sense.

I think we can let subparagraph (iv) go as unneeded.

I also think the parties engaged in the dispute should have a chance to be heard on an amicus application but strictly within the panel’s discretion.

With regard to Malcolm’s point I am still considering this but suspect that here again we might put our trust in the panel to sort through amicus-requests on a sound and efficient basis.

Best wishes all,

David

David McAuley

Policy Director

Verisign, Inc.

From: IOT <iot-bounces at icann.org> On Behalf Of Becky Burr via IOT
Sent: Sunday, August 27, 2023 5:50 PM
To: Susan Payne <susan.payne at comlaude.com>
Cc: iot at icann.org
Subject: [EXTERNAL] Re: [IOT] IRP-IOT: Please share view on Amicus Participation

Caution: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

All of these cases seem to me to require an evaluation by the panel.  Someone has to decide if the prospective amicus meets the criteria

On Sun, Aug 27, 2023 at 9:07 AM Susan Payne via IOT <iot at icann.org<mailto:iot at icann.org>> wrote:

   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

<https://secure-web.cisco.com/1r-GPNW5tg5CjI_wqPq9h_B-U3taseAGTy-dvX8_vWeMi7fz7IohWwW6lUTY3J85RPO1Lym1rAXrN9wAjjmmlxiYwtd3h1gobZAL0qXGWnN9hdiptcwYgTrWFkK1rK7iAE_8R7cpqvHY-rSIg5p6thVqm6Z2lxFXPC-vYXcdio3Lbrn1u8LFzpX3T9vD7UzAN_wxMt2dERl4BO-a_qI4ryJm91YAIOsPfjd5GgGgsiFVna8dhBFiANPpH8XRzqTbliD6rtpVUNGL3FG8LJxDGH1MSZrabljaazlvFfHZigNM/https%3A%2F%2Fcomlaude.com%2F>

   28-30 Little Russell Street,
   London WC1A 2HN, UK
   T +44 (0) 20 7421 8250
   Ext 255

   comlaude.com<http://secure-web.cisco.com/1oo5dgl9az1L8ArRY8ikNLkctFuQIx7mUyVlh7IMCFaTtwwqUYSOEX9iVAmJ3PJwuVZMxs1ayKZderWW2pnzrxd_WzsG5VBtnZDfLzz6fLcVOOJdGi40IEbRlrSYJm2wX5D4g8hFiFnWmIxsg6eOGlrrgV4bajPaTMPkiivs7r3VoFPQBlgtH-_oijaFMzZZSlF-GmNeHMtCAb6CMQplG2Y1kxQTJAdB3-AYLk9krMVu3n00Mcw3yuvv2RcVlrjycqiD5kNEUzAlDfpfxY8yWH7Y2etEoSPn933lr-YTQqBc/http%3A%2F%2Fcomlaude.com>

   Follow us on Linkedin<https://secure-web.cisco.com/13IRIdzixD2oeUC3ZAJ7HO1WvWFVo0DXe3Cn8wcsS6VBX64bM3Bl32WjaVKlzbY5ltp-lLztAUSAO5CSnW0EPPbZp9pNzjc0Anzr7Hd3T7vClE92i1QXrrhKgKUuMn2chskObyks9bOegeShhZ8EGAJ4uEKIpyvRNssKjTQ2CPTuz24iobWCFlGlRNjbT-EvpDOW2KSzGT7SKeYASn3575LAhb4DTE1RkaHdZKnUtopFfqYPRfi4_qd1y1sHwLKSLhpDhC3EBhqPnnhTyDWewH2kLO6jAmQ0Y-ZZc5xXF_2k/https%3A%2F%2Ft-uk.xink.io%2FTracking%2FIndex%2FpRkAAFJfAADw_RQA0> and YouTube<https://secure-web.cisco.com/1lhpQidTzQ_6kDSAsURaZx6C9znexATqTTU4KptyGzS81Go10VMXIUUOMRFNtJ9ORfMnCRPt5H7zj30fNqHrbpZ-38iShyUh0xOzF4nNCNODnYD1xtppiMRdKh9BX9TuVnJrGpKSTKH5FVG8mhxtspmPoEIbXXIfpyK4WMSeIXiR5ry6TbG2zaeh5c8HXTDeyezakLhL2Wbz0Fen8qZpqt_4v10Jy5paeN_oSsIuORjAVf6T37yPAlPj6vumod1ZXZVhv4Vq3xcsRLxRZqAGUwC7eWL5aplaS8COgvmyqMLA/https%3A%2F%2Ft-uk.xink.io%2FTracking%2FIndex%2FbhkAAFJfAADw_RQA0>

<https://secure-web.cisco.com/1vjey2Y53LIsz6go29tP7mfZvDUcoEd9t_yIQm_egcm1w2VKAT_1mevam3rkNdutFaTzWeYQg9rmTa_b4XOOr30rHKd-BvAQiecdTfzKyiVuaev5u3fXS-oNZvRi-fR3vJ02lIMV3DzTMgAY8aTrt4Ldj5PS8DyMdar_CjxX_CBWzOKsn8zIgLqhreQLerbInViAgCOo9nJMJG3defnbMVY2pe_yck9HERqUrnIQaPXyz9b0Ys1fQ2qeQSZxzMaUn7SrlAPYAeSZiec9OpMVkeo6uE9fDoOnR9o-JorX6KMJuEEktqyUicyxyDBJ39Jgw/https%3A%2F%2Fwww.linkedin.com%2Fcompany%2Fcom-laude> <https://twitter.com/comlaude?lang=en>  <https://www.facebook.com/ComLaude/>  <https://www.youtube.com/@comlaude>

   Due to public holidays the Com Laude Group offices located in the UK will be closed on Monday 28 August 2023.

   Please send your urgent requests to admin at comlaude.com<mailto:admin at comlaude.com> as this is the email box which the team providing cover will be checking and don't forget to copy in your Domain Strategists.

   We will also continue to provide 24/7 monitoring of our services and servers and emergency cover in the event that you have a critical requirement outside of our "follow the sun" office hours.
   Please call our emergency helpline on one of the following numbers in such circumstances - UK: +44 (0) 20 82313 5922, USA: +1 2064877683

     _____

   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 Com Laude Group Limited (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 is a limited company registered in England and Wales with company number 10689074 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England. 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 6181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176 and registered office at 15 William Street, South West Lane, Edinburgh, EH3 7LL Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, a corporation incorporated in the State of Washington and principal office address at Suite 332, Securities Building, 1904 Third Ave, Seattle, WA 98101; Com Laude (Japan) Corporation, a company registered in Japan with company number 0100-01-190853 and registered office at 1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan; Com Laude Domain ESP S.L.U., a company registered in Spain and registered office address at Calle Barcas 2, 2, Valencia, 46002, Spain. For further information see www.comlaude.com<https://secure-web.cisco.com/1WE9pKwU1-e6AuVPd0K9vwHqOh0kssOfv26LwHwCrCi3U4ofmDUJEdc-t8S_AuWnkRhUlsocp0jvzAhQt_Isg2GpTDxjaeY_xVEN6CrMv2viJt4fwf89fTFaEJDAq-9MdzFanElXRDKFh4S26Qihiuwr0E5Yk2FeCkzfvTNXSIPfu9sWqceuyyAdq_XOMFTqdIXTvlj25W6ZfCA1Z2R2eqJ6V06H6BdbSHjKFZxapSFl6nHV-ejvxM66dZORFMqX75oZOxMKkKIcfY-aVrpkUJRnBYXqI0EwSpbKc0J8eoxE/https%3A%2F%2Fcomlaude.com>

   _______________________________________________
   IOT mailing list
   IOT at icann.org<mailto:IOT at icann.org>
   https://mm.icann.org/mailman/listinfo/iot<https://secure-web.cisco.com/1xMWboM2CHV7RNffWFql17bDJbUgGEtwKxSTvgYSvyTm-45sRqq3S1Tw2gxHOjiBhNGA20Tz4puMPizw5JnKIydMGC4CCMIE2Ql72mKJ0oFVNwQfFTo9o83kNKD7jPxq4eBBzDjAhodD_VUcP91RkZgHOQlU-XIQVI7BwLNA6_hgQo9irLaMbcYeYexkU00A-wlp2x9TxlZIKE5diidToAxZilYfpNz1IJmhTuh8T5E0whoQB4eUISBSRSYV_8PfQTD7Q5tMQU5iVeShYYLC2rZnkdzEuHD0A-qFZ_gERKWw/https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo%2Fiot>

   _______________________________________________
   By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy<https://secure-web.cisco.com/17iJ3NJSl6O4SjiTrnWjVzsiqfADLjsWcKdu1mHzyyoEYRr41fkFzibAX6-2KuRuRh7oVuW91pCBzdzVANdaGRxmvJ1M24xDds6QNY9Z39AqtPuWC-xIITDOxPg9rdfluOl17aTffO2HHE0PAoQAOOxBX6TMRvk3BkCVZDOSp8pkH94rLvnV7V2Bf7vKRbayt9yh264fYtlbuNvog5vgXA-04AndgYQnygCXVj89hLTJ2LMESMbyUp4eIbsl3ehlYF-feyLPc7ZyWKPCUtlvk-AfvHjd8UpP0bADSTOL-SiY/https%3A%2F%2Fwww.icann.org%2Fprivacy%2Fpolicy>) and the website Terms of Service (https://www.icann.org/privacy/tos<https://secure-web.cisco.com/1kIS4ZiJyxQPTqQl-YgOqZ8vl0SMuwwzvUXUmU_NZvdTdDweDj140FncZxFPDcMWI3AVaF8L6kbAOJrnp0qiuijKD5JcW4eQ079UhIxo7R5r9Riz9NoPrmH-biDV6Aolkj_J6Q0l51o8G54sy-LveM2gsKqdy_TYYEq3eY_h1F2cTAS3xDxpt9v29a1D-t7lrNCioB_8iNOgz2fD1vEbT0riHAuAlRgVfgNBE68L1D0SnqtixkJAJyGXH5BTj8qKzVmYXZy_E09WU7BGR3rSc8Q5bFQLFrNy4e_luXRPAv9Q/https%3A%2F%2Fwww.icann.org%2Fprivacy%2Ftos>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://mm.icann.org/pipermail/iot/attachments/20230829/d2b038cc/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.jpg
Type: image/jpeg
Size: 85818 bytes
Desc: image006.jpg
URL: <https://mm.icann.org/pipermail/iot/attachments/20230829/d2b038cc/image006-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.png
Type: image/png
Size: 1195 bytes
Desc: image005.png
URL: <https://mm.icann.org/pipermail/iot/attachments/20230829/d2b038cc/image005-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.png
Type: image/png
Size: 1954 bytes
Desc: image004.png
URL: <https://mm.icann.org/pipermail/iot/attachments/20230829/d2b038cc/image004-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 1945 bytes
Desc: image003.png
URL: <https://mm.icann.org/pipermail/iot/attachments/20230829/d2b038cc/image003-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 1463 bytes
Desc: image002.png
URL: <https://mm.icann.org/pipermail/iot/attachments/20230829/d2b038cc/image002-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 103154 bytes
Desc: image001.png
URL: <https://mm.icann.org/pipermail/iot/attachments/20230829/d2b038cc/image001-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: ~WRD0000.jpg
Type: image/jpeg
Size: 823 bytes
Desc: ~WRD0000.jpg
URL: <https://mm.icann.org/pipermail/iot/attachments/20230829/d2b038cc/WRD0000-0001.jpg>