[IOT] IRP-IOT Panelist Selection Update

Wed May 10 20:32:27 UTC 2023

I echo Malcolm's sentiment that the role of the Emergency Panelist should
be narrowly and precisely defined in our end product.

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Mike Rodenbaugh

address:

548 Market Street, Box 55819

San Francisco, CA 94104

email:

mike at rodenbaugh.com

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+1 (415) 738-8087

On Wed, May 10, 2023 at 3:36 AM Malcolm Hutty via IOT <iot at icann.org> wrote:

> Dear all,
>
>
>
> My apologies for my absence last night without prior notice.
>
>
>
> I don’t have anything much to add to what I hope was a useful discussion
> on Susan’s straw man. For my part it seems a good suggestion, subject to
> any points that may have been raised in my absence.
>
>
>
> However, I would add one word of caution on finer detail for when it comes
> to implementing this. Susan’s proposal includes the following statement:
>
>
>
> “The Emergency Panelist role will be expanded to allow Emergency Panelists
> to make determinations on procedural matters such as this.”
>
>
>
> While I have no objection to the proposal, the Emergency Panelist is
> intended as an exceptional position, with a narrowly defined role. The
> three member panel should be the norm.
>
>
>
> I would not want the elaboration of more responsibilities for the
> Emergency Panelist such as this to create a sense that the role was defined
> only by example, rather than exhaustively, and that therefore the Emergency
> Panelist could acquire more powers over time not previously contemplated
> because each addition seemed somewhat similar to those that came before, so
> as to erode the use of the three member panel.
>
>
>
> Kind Regards,
>
>
>
> Malcolm.
>
>
>
> --
>
> * Malcolm Hutty | Director, Legal and Policy*
>
> T: +44 7789 987 023 | www.linx.net
>
>
>
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>
> *From:* IOT <iot-bounces at icann.org> *On Behalf Of *Susan Payne via IOT
> *Sent:* Tuesday, May 9, 2023 3:00 PM
> *To:* iot at icann.org
> *Subject:* [IOT] IRP-IOT Panelist Selection Update
>
>
>
> Hi all
>
>
>
> During our last call, we spent our time largely focussed on the situation
> where the Standing Panel might lack “the requisite diversity of skill and
> experience needed for the particular IRP proceeding”, as envisaged in the
> Bylaws Section 4.3(k)(ii).  Frm that discussion, I think the key points
> raised were as follows:
>
>
>
>    - Any rules we set should be light-touch.  Need to allow the panel to
>    have some procedural freedom, which has worked will to date;
>    - The Standing Panel concept is an important one under the Bylaws, so
>    any exception to this should be narrow and exceptional;
>    - There is a need to clarify the mechanism to address the situation
>    where the Standing Panel lacks the diversity of skill and experience.
>    Whilst many felt that this decision needs to rest with the Standing Panel
>    (or its Chair), there was also support for finding a balance, since the
>    parties may, in practice want to raise this as a concern;
>    - Care is needed not to invite actions/decisions from the full
>    Standing Panel which might then have the effect of excluding them all from
>    subsequently acting on the case;
>    - The Bylaws also allow for an IRP Panel to seek expert input;
>    - A determination on whether there is a lack of the requisite
>    diversity of skill and expertise could be made by:
>       - Full Standing Panel (risk that all are then conflicted from
>       serving on the IRP Panel for the substantive dispute)
>       - Chair of the Standing Panel (risk that the Chair then is excluded
>       from serving on the IRP Panel in such cases)
>       - Emergency Panelist (likely requires some expansion of this role;
>       currently only seems to cover interim relief)
>       - Allow the Standing Panel to set their own process
>
>
>
> Proposed way forward:
>
>
>
>    - The Standing Panel may, of its own volition and acting through the
>    Chair of the Standing Panel, conclude that it lacks the requisite
>    diversity of skill and experience in the Standing Panel for a particular
>    case.  They would need to identify the proposed path forward, for example
>    that both parties select an IRP Panelist from the Standing Panel and then
>    the third IRP Panelist is selected from outside the Standing Panel, or that
>    all IRP Panelists are selected from Outside the Standing Panel
>    - A party can raise a concern that there is a lack of the requisite
>    diversity of skill and experience in the Standing Panel for the particular
>    case, which they would do at the time of IRP Panelist selection, i.e.
>    before the 3-person IRP Panel is appointed.
>    - Where raised by a party, an Emergency Panelist will be appointed to
>    from within the Standing Panel to make the determination, unless and until
>    the Standing Panel has set their own procedure for handling such a
>    situation.
>    - The Emergency Panelist role will be expanded to allow Emergency
>    Panelists to make determinations on procedural matters such as this. The
>    expectation is that Standing Panelists will take it in turns to serve as n
>    Emergency Panelist, but this will be a matter of Standing Panel procedure
>    for the Standing Panel to decide.
>
>
>
> I have not amended the draft strawperson to reflect this, but would
> propose to do so after our call if there is support from the group.
>
>
>
> Susan Payne
> Head of Legal Policy
>
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