[IOT] IRP-IOT Panelist Selection Update

Thu May 11 13:22:09 UTC 2023

Dear Susan,
Dear Allé, Thank you very much for the new text.It is far better than that
proposed by the Secretariat .
However, I have  COMMENT on the following
Quote

   - *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.*

Unquote
*In both of these two circumstances there should be a clweat and specified
justification, valid  and convicing reasons *
Regards
Kavouss

On Wed, May 10, 2023 at 10:33 PM Mike Rodenbaugh via IOT <iot at icann.org>
wrote:

> I echo Malcolm's sentiment that the role of the Emergency Panelist should
> be narrowly and precisely defined in our end product.
>
> [image: Logo]
>
> Mike Rodenbaugh
>
> address:
>
> 548 Market Street, Box 55819
>
> San Francisco, CA 94104
>
> email:
>
> mike at rodenbaugh.com
>
> phone:
>
> +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
>>
>>
>>
>>
>>
>> *London Internet Exchange Ltd (LINX)*
>>
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>>
>> Registered in England No. 3137929 at Trinity Court, Trinity Street,
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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
>>
>> <https://comlaude.com/>
>>
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