[IOT] Today's Call - Draft Rule 7

Tue Jul 25 16:55:08 UTC 2023

Dear all,

I was not part of the small group looking at this rule and have no view on the scenarios that may have been considered in regard to this rule.

However, I am concerned that the amendment has the potential for an unintended knock-on effect on matters outside this rule.

The amendment refers to a person
“material interest relevant to the DISPUTE but does not satisfy the standing requirements for a CLAIMANT”

What is the scope for such a person to exist?

A Claimant may be “any legal or natural person, group, or entity including, but not limited to the EC, a Supporting Organization, or an Advisory Committee that has been materially affected by a Dispute”.

Wouldn’t a person with “a material interest relevant to the dispute” be considered to have been “materially affected by” the dispute? By adding this language, you may imply that the answer is no.

The problem with such apparent conflicts of natural language is that they invite the tribunal (in this case, the IOT) to look for nuances that aren’t there, and to attempt to resolve the conflict by creating artificially narrow and technical distinctions that may bear no relation to what was originally intended.

I think the intent here is to cast the net of this rule 25 more broadly than we understand Claimants to be, not to narrow the scope of eligibility as a Claimant. Perhaps we need some further clarifying language so as to ensure that is indeed the effect.

I look forward to discussion of this point tonight,

Kind Regards,

Malcolm.

--
 Malcolm Hutty | Director, Legal and Policy
T: +44 7789 987 023 | www.linx.net<http://www.linx.net/>

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From: IOT <iot-bounces at icann.org> On Behalf Of Susan Payne via IOT
Sent: Tuesday, July 25, 2023 4:18 PM
To: Kristina Rosette <krosette at gmail.com>; iot at icann.org
Subject: Re: [IOT] Today's Call - Draft Rule 7

Kristina, thanks so much for spotting this.  It looks as though the Google Docs version that was circulated is an earlier draft and therefore does not capture a few of the changes that the small team subsequently discussed, including those you have flagged.  They are captured in the Word attachments dated 12 July, which we will work off during our upcoming call.

All – Flip has added some comments to the clean (non-redline) Word doc and circulated earlier today.  We will therefore work off this version for the call (attached).  We will also have the redline version available should we need it (also attached) but as previously mentioned it is quite difficult to read so less easy to work from.

Our agenda:

  1.  Review agenda and updates to SOIs
  2.  Action items: Rule 3 panel selection
  3.  Review and discussion of the small team’s proposed revision to Rule 7
  4.  AOB
  5.  Next call 8 August tbc

Susan Payne
Head of Legal Policy
Com Laude
T +44 (0) 20 7421 8250
Ext 255

[cid:image003.png at 01D9BF1C.E5261CD0]<https://comlaude.com/>

We are pleased to launch our new YouTube channel<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0>
From: IOT <iot-bounces at icann.org> On Behalf Of Kristina Rosette via IOT
Sent: Tuesday, July 25, 2023 2:01 PM
To: iot at icann.org
Subject: [IOT] Today's Call - Draft Rule 7

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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