[IOT] IRP-IOT Panelist Selection Update
Scott Austin
saustin at vlplawgroup.com
Thu May 18 13:34:15 UTC 2023
Mike:
Thank you for the prompt follow up.
Best regards,
Scott
Please click on a link below to calendar a 15, 30, or 60 minute call with me:
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Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP
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Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin at VLPLawGroup.com<mailto:SAustin at VLPLawGroup.com>
From: Mike Rodenbaugh <mike at rodenbaugh.com>
Sent: Thursday, May 18, 2023 3:36 AM
To: Scott Austin <saustin at vlplawgroup.com>
Cc: Susan Payne <susan.payne at comlaude.com>; iot at icann.org
Subject: Re: [IOT] IRP-IOT Panelist Selection Update
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
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Mike Rodenbaugh
address:
548 Market Street, Box 55819
San Francisco, CA 94104
email:
mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>
phone:
+1 (415) 738-8087
On Thu, May 18, 2023 at 1:25 PM Scott Austin <saustin at vlplawgroup.com<mailto: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:
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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<mailto:SAustin at VLPLawGroup.com>
From: IOT <iot-bounces at icann.org<mailto: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<mailto:susan.payne at comlaude.com>>
Cc: iot at icann.org<mailto: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
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Mike Rodenbaugh
address:
548 Market Street, Box 55819
San Francisco, CA 94104
email:
mike at rodenbaugh.com<mailto: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<mailto: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
[cid:image004.png at 01D9896B.E74D2940]<https://comlaude.com/>
We are pleased to launch our new YouTube channel<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0>
From: IOT <iot-bounces at icann.org<mailto: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<mailto:mike at rodenbaugh.com>>
Cc: iot at icann.org<mailto: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<mailto: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.
[Logo]
Mike Rodenbaugh
address:
548 Market Street, Box 55819
San Francisco, CA 94104
email:
mike at rodenbaugh.com<mailto: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<mailto: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<http://www.linx.net>
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London Internet Exchange Ltd (LINX)
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Registered in England No. 3137929 at Trinity Court, Trinity Street, Peterborough PE1 1DA
From: IOT <iot-bounces at icann.org<mailto: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<mailto: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
[cid:image006.png at 01D9896B.E74D2940]<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/>
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