[IOT] IRP-IOT Panelist Selection Update
Mike Rodenbaugh
mike at rodenbaugh.com
Thu May 18 07:36:24 UTC 2023
Hi Scott,
The Covenant is in Module 6 to the Applicant Guidebook, which is the
applicant contract -- attached for convenience.
Attached also is ICANN's demurrer brief in the litigation that I
referenced. We have a court hearing on that on May 30.
Best,
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 1:25 PM Scott Austin <saustin at vlplawgroup.com>
wrote:
> Susan:
>
> I also would like another link to the document with access approved and
> would like to address the ambiguity in the word “capacity” as it is used in
> this context.
>
>
>
> Assuming Mike is correct regarding the covenant not to sue, please
> identify where it is found in ICANN documents we can read, and will that
> covenant be something we need to consider down the road or is it beyond our
> remit.
>
>
>
>
>
>
>
> Best regards,
>
> Scott
>
>
>
> *Please click on a link below to calendar a 15, 30, or 60 minute call with
> me:*
>
> a 15-minute call <http://calendly.com/saustin2/15min> a 30-minute
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> <http://calendly.com/saustin2/60min>
>
>
>
> *[image: IntellectualPropertyLaw 100] **[image: microbadge[1]]*
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>
> *Scott R. Austin | Board Certified Intellectual Property Attorney | VLP
> Law Group LLP*
>
> *101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301*
>
> *Phone: (954) 204-3744 | Fax: (954) 320-0233 |* SAustin at VLPLawGroup.com
>
>
>
> *From:* IOT <iot-bounces at icann.org> *On Behalf Of * Mike Rodenbaugh via
> IOT
> *Sent:* Wednesday, May 17, 2023 10:14 PM
> *To:* Susan Payne <susan.payne at comlaude.com>
> *Cc:* iot at icann.org
> *Subject:* Re: [IOT] IRP-IOT Panelist Selection Update
>
>
>
> 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>*
>
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>
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