[IOT] IRP-IOT Panelist Selection Update
Mike Rodenbaugh
mike at rodenbaugh.com
Thu May 18 02:14:11 UTC 2023
Hi Susan,
I don't have quarrel with any of this except that the point #1 is simply
incorrect based on actual IRP cases to date. In fact, almost all of them
arise from the NewTLD Program, where ICANN imposed a purported Covenant Not
to Sue on all applicants. And ICANN has vigorously litigated the validity
of that Covenant when it has been challenged, including in a pending
lawsuit I am handling. In other words,, ICANN tries to force all TLD
applicants to the IRP rather than court. I imagine they intend to try to
maintain that Covenant and that position as to future gTLD applications
also. And we should expect, based on past history, that the vast majority
of disputes with ICANN will arise from future applications.
But I think you can just erase that point from your summary, and everything
else still makes sense to me.
Can you send around the link to the Google Doc again please, for a final
review by the group as you suggest?
Thank you,
Mike
[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 Thu, May 18, 2023 at 12:52 AM Susan Payne <susan.payne at comlaude.com>
wrote:
> Hi all
>
>
>
> Thanks to Malcolm, Mike and Kavouss for their recent comments.
>
>
>
> *Lack of requisite skill/experience*
>
>
>
> During our call last week we again discussed the strawperson on IRP Panel
> selection, and again largely focussed on the situation where the Standing
> Panel might lack “the requisite diversity of skill and experience needed
> for the particular IRP proceeding” (para 3 in the Strawperson), as
> envisaged in the Bylaws Section 4.3(k)(ii). If you were unable to join
> the call I encourage you to listen to the recording or review the
> transcript.
>
>
>
> Based on the input from participants on the call, I would say that most
> are opposed to building a system for considering claims by either of the
> IRP parties that the Standing Panel lacks the requisite diversity of
> skill and experience needed for the particular IRP proceeding (and thus
> seeking to select panelist(s) from outside of the Standing Panel).
> Instead, the majority of participants on the call seemed to favour that any
> consideration of lack of Standing Panel capacity, whether in terms of
> panelist availability or requisite panelist diversity of skill/experience
> for a particular case, should be a matter for the Standing Panel alone.
> Points made included:
>
> 1. In many (but not all) cases, a claimant who is not satisfied with
> the Standing Panel is not bound to use the IRP, but can take their claim
> elsewhere, such as to Court;
> 2. The issue is not about panelist expertise in a particular subject
> matter, but whether they have the capacity, skill and experience to hear
> and determine disputes.
> 3. If you go to court you do not get to select your judge, and judges
> routinely hear cases outside of the area of their subject-matter expertise
> – their role is as an impartial neutral, able to weigh the evidence and
> form a sound judgment, and to manage the case with efficiency, lack of
> delay, etc. The same is the case for an IRP panelist
> 4. If the IRP Panel requires specific subject-matter expertise, there
> is provision to allow for the appointment of expert(s)
> 5. This situation should arise very rarely, therefore, and it is
> matter for the Standing Panel to manage rather than building a complex
> process for adjudicating such concerns raised by parties.
>
>
>
> Since a number of our members were unable to join the call, could you
> please share further views on this before our next call. If there is in
> fact support for building a process to handle skill and experience concerns
> raised by parties, please provide your concrete suggestions for how to
> address this in our Rule 3.
>
>
>
> *Other provisions in the Rule 3 Strawperson*
>
>
>
> I don’t see any suggestions in the Google Doc regarding the rest of the
> Strawperson. This has been out for review and input now for a few weeks.
> We need to make progress, and it’s our joint responsibility to develop
> solutions. There were comments expressed on our last call that the process
> for where the Standing Panel lacks capacity (i.e. is too busy) presupposes
> that there would be *no* IRP Panellists drawn from the Standing Panel,
> whereas it might be that there simply isn’t capacity to find 3 Panelists.
> If this is a concern, or there are any other concerns with the Rule 3 text,
> please make concrete proposals by 1700 UTC on Monday so that we all have
> some opportunity to review before our call on Tuesday. Absent this I will
> be assuming there are no objections to the rest of the text (aside for the
> skill/experience issue referred to above).
>
>
>
>
>
> Thanks
>
> Susan
>
>
>
>
>
> Susan Payne
> Head of Legal Policy
> Com Laude
> *T* +44 (0) 20 7421 8250
> *Ext* 255
>
> <https://comlaude.com/>
>
> *We are pleased to launch our new YouTube channel
> <https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0>*[image: .]
>
> *From:* IOT <iot-bounces at icann.org> *On Behalf Of *Kavouss Arasteh via IOT
> *Sent:* Thursday, May 11, 2023 2:22 PM
> *To:* Mike Rodenbaugh <mike at rodenbaugh.com>
> *Cc:* iot at icann.org
> *Subject:* Re: [IOT] IRP-IOT Panelist Selection Update
>
>
>
> 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)*
>
> c/o WeWork, 12 Moorgate, London EC2R 6DA
>
>
>
> Registered in England No. 3137929 at Trinity Court, Trinity Street,
> Peterborough PE1 1DA
>
>
>
> *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/>
>
> 28-30 Little Russell Street,
> London WC1A 2HN, UK
> *T* +44 (0) 20 7421 8250
> *Ext* 255
>
> *comlaude.com <http://comlaude.com/>*
>
> *We are pleased to launch our new YouTube channel
> <https://t-uk.xink.io/Tracking/Index/bhkAAFJfAADw_RQA0>*
>
> <https://www.linkedin.com/company/com-laude>
> <https://twitter.com/comlaude?lang=en>
> <https://www.facebook.com/ComLaude/> <https://www.youtube.com/@comlaude>
>
> [image: Image removed by sender. .]
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