[IOT] Today's Call - Draft Rule 7

[McAuley, David]

Thank you, Kristina.



I also participated in the small team, although not from its beginning.



While I frequently agree with Kristina, with respect I am not in full agreement here regarding the highlighted language in her email.



Specifically, I am part of the small team that believes the following sentence should not be added to paragraph 25:



The purpose of participation as an amicus curiae is to assist the IRP PANEL by offering information, expertise or insight that has bearing on the issues in DISPUTE, which is between ICANN and the CLAIMANT.



In my opinion, the sentence is unnecessary and could be unduly limiting. It is my understanding that amici at times brief on things like historical context, advocacy of new ideas, and the like – oftentimes, though certainly not always, in an academic context in an effort not so much to assist as to inform the panel or even the record. Adding this purpose and using these words, even while general, can be argued as a limitation beyond materiality and relevance. Paragraph 25 without this sentence has the tests of materiality and relevance – other than those it seems to me we should trust the panel to act appropriately in dealing with requests to become an amicus.



Best regards,

David



David McAuley

Policy Director

Verisign, Inc.



From: IOT <iot-bounces at icann.org> On Behalf Of Kristina Rosette via IOT
Sent: Tuesday, July 25, 2023 9:01 AM
To: iot at icann.org
Subject: [EXTERNAL] [IOT] Today's Call - Draft Rule 7



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All,



With apologies, I will miss today's call. I'll be in transit from North Carolina after my son's college baseball season.



I was part of the team working on this proposed draft rule 7.  I support it.



It appears that the circulated draft may have inadvertently omitted two proposed changes to section 25 (amicus curiae). I had proposed the following change to 25(i) to restrict its breadth given the existence of 25(ii)-(iv). It was my understanding that the small team supported this change:



*       25(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.  [proposed change in bold and underscore].

The team also discussed a proposed change to 25 that would clarify the purpose of amicus curiae to provide guidance to the Panel, the community and potential amicus curiae. It was my understanding that the majority of the small team supported this change.



25.  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 below. The purpose of participation as an amicus curiae is to assist the IRP PANEL by offering information, expertise or insight that has bearing on the issues in DISPUTE, which is between ICANN and the CLAIMANT. 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: [proposed change in bold and underline]



-*-



Kristina

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