[IOT] IRP-IOT Next steps and meetings at ICANN78

Mon Oct 23 15:31:31 UTC 2023

Following our discussion at the meeting today, in which it was agreed that we do not wish parties to attempt to litigate whether the Panellist’s has the necessary skills and expertise, I have drafted some suggested text to give effect to this intent.

Please see attached my suggested mark-up on Rule 3 which separates out the “lack skill and expertise” issue, and moves it under the more general category of recusal.

Thus a panellist can choose to recuse themselves for any of the customary reasons; we are simply pointing out that “lacking the skill and expertise required for a proceeding” referred to in the bylaws is simply one of the reasons (or an additional reason) a panellist may choose to recuse themselves.

I have followed the existing language in the bylaws, both on “lacking the skill and experience required for a proceeding” and the reference to “norms of international arbitration”

This edit would make it clear that a party that attempted to challenge a panellist capacity to sit on the grounds they lack the necessary skill or expertise was essentially in the same position as one arguing that the Panellist ought to have recused themselves for some other reason. This is not a position that generally endears a Party’s Counsel to a judge or arbitrator, and so should be highly dissuasive Parties attempting to litigate this – as we intend.

Malcolm.

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From: IOT <iot-bounces at icann.org> on behalf of Susan Payne via IOT <iot at icann.org>
Date: Monday, 16 October 2023 at 12:49
To: Bernard Turcotte via IOT <iot at icann.org>
Subject: [IOT] IRP-IOT Next steps and meetings at ICANN78
Hi all

Unfortunately, we were unable to achieve quorum for the proposed IOT meeting last week and so the agenda items will be carried over to our meetings in Hamburg.  Our primary tasks are:

1.      Finalise the Rule 3 text (IRP Panel Selection).  I am re-attaching updated and proposed final text of Rule 3 – this has been revised to reflect the discussions on our last couple of calls, and includes Sam’s text in subsection 3 to address the fact that Standing Panel lack of capacity may not be “all or nothing”.  The recent updates are highlighted to distinguish from the rest of the redlines against the current Interim Supplementary Procedures.

  1.  Review and discuss the proposed text for our public comment, consisting of the mark-up of the relevant rule against the current form of the Interim Supplementary Procedures, together with explanatory text/rationale. This public comment text is not intended to re-open a discussion on the wording of the rules themselves, which has previously been agreed, but to ensure that the explanation/rationale reflects our collective decisions.  I am reattaching the word version of the following (previously circulated for our last call), and also including links to Google Doc versions:

     *   rule 3 – IRP panel selection (https://docs.google.com/document/d/1ZRtrVsR20z5uA03X07FIlmHcuOZqsttqlUsN_gIEhN0/edit?usp=sharing)
     *   rule 5B – Translations (https://docs.google.com/document/d/1wbM4hlz0OQP9LsyEaFKexsdd9Y45qQKusJMmtlcpdlU/edit?usp=sharing)

In addition, I am now attaching, or will shortly circulate:

     *   rule 7 – Consolidation, intervention and participation as an amicus ( https://docs.google.com/document/d/19JPBh64qbtURw1OBL9Z1P3GchCYC7VdJeJwCpBJvltE/edit?usp=sharing)
     *   rule 4 – Time for Filing, which includes Initiation (to follow)

In order to make the best use of our time please do review prior to our ICANN 78 meetings and propose any edits to the explanatory & rationale text only as comments in the GoogleDocs versions.  If you have trouble seeing the redlines in the Google Doc you may need to log-in.

  1.  Time permitting, we may begin to discuss the Cooperative Engagement Process (CEP).  The current process, which predates the changes to ICANN’s Bylaws, can be found here:  https://www.icann.org/en/system/files/files/cep-11apr13-en.pdf  As always the insights of practitioners who have utilised the CEP will be very beneficial.

Meetings at ICANN 78

We have the following meetings during ICANN 78:

  *   Monday 23 October 16.30 – 17.30 CEST (14.30 UTC), Hall C
  *   Wednesday 25 October – 10.30 – 12.00 CEST (08.30 UTC), Hall C

I hope to see as many of you as possible in person.  If you cannot attend in person, but plan to do so remotely, please note that you will still need to register for the ICANN78 meeting in order to access the session details.  If you download the Sched App or synch your calendar it should automatically update with the Zoom link when released – or you will be able to get it from the schedule on the ICANN website.

Thanks all, and safe travels for those attending in person.

Susan

Susan Payne
Head of Legal Policy

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