[IOT] IRP-IOT Panelist Selection Update
Kristina Rosette
krosette at gmail.com
Thu May 18 13:21:37 UTC 2023
If #1 is the point made by David, then I completely misunderstood him as
Mike is 100% correct on the covenant not to sue.
On Wed, May 17, 2023 at 10:14 PM Mike Rodenbaugh via IOT <iot at icann.org>
wrote:
> 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
> <https://www.google.com/maps/search/548+Market+Street?entry=gmail&source=g>,
> 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
>> <https://www.google.com/maps/search/548+Market+Street?entry=gmail&source=g>,
>> 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
>> <https://www.google.com/maps/search/12+Moorgate,+London+EC2R+6DA?entry=gmail&source=g>
>>
>>
>>
>> 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,
>> <https://www.google.com/maps/search/28-30+Little+Russell+Street,+%0D%0ALondon%C2%A0WC1A+2HN,%C2%A0UK?entry=gmail&source=g>
>> London WC1A 2HN, UK
>> <https://www.google.com/maps/search/28-30+Little+Russell+Street,+%0D%0ALondon%C2%A0WC1A+2HN,%C2%A0UK?entry=gmail&source=g>
>> *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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