[IOT] IOT: follow up from call of 13 February 2024

Mon Feb 19 14:48:10 UTC 2024

All
There were a couple of points for me to follow-up on from our call last week:

Rule 3 - Panel Selection, s3(e), what is meant by "tribunal" in the final sentence.  This section was carried-over and adapted from the ICDR Rules, which use the terms "tribunal" and "arbitral tribunal" interchangeably.  In our Supplementary Procedures, therefore, this should be a reference to the "IRP Panel".  I have noted to this effect in the Google Doc.

Rule 4A - Initiation, s5, if the concept of the Panel shifting costs where it considers that part of a Claim or Defence is frivolous or abusive was something that the IOT had discussed and agreed, or whether this was introduced by the legal drafters.  I have checked back to our drafts of heads of agreement on Initiation, and confirm that this concept is one which the IOT discussed and agreed.  See for example proposed final draft discussed during meeting #103<https://community.icann.org/pages/viewpage.action?pageId=231376860&preview=/231376860/231376861/IRP-IOT_Initiation%20Draft%20Agreement%20(Strawman%20v3)%20Feb%202023.docx>, which includes at s7:
"Where the three-person IRP Panel, on making its final IRP determination, finds that part or all of a party's claim or defence is frivolous or abusive, it has the discretion to shift and provide for the losing party to pay administrative costs and/or fees of the prevailing party.  This can include legal fees."

This also reflects the procedure in practice, where Panels have considered the different parts of the Claim/Defence when determining if any cost-shifting is appropriate.  An example is .WEB, where in fact the IRP Panel considered this very issue of whether the whole of the Claim/Defence must be frivolous/abusive before the cost-shifting can take place - and concluded that this is not the case.  See the Panel's consideration of this issue beginning at para 389<https://www.icann.org/en/system/files/files/irp-afilias-corrected-final-declaration-redacted-15jul21-en.pdf>.

Susan Payne
Head of Legal Policy
Com Laude
T +44 (0) 20 7421 8250
Ext 255

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From: Susan Payne
Sent: Monday, February 12, 2024 8:22 PM
To: Bernard Turcotte via IOT <iot at icann.org>
Cc: Bernard Turcotte <turcotte.bernard at gmail.com>; Brenda Brewer <brenda.brewer at icann.org>
Subject: IOT Agenda for 13 February 2024

  1.  Review of Agenda and Updates to SOIs
  2.  Action Items:
     *   ICANN Legal to circulate updated drafts for the Rules; all to provide comments or suggested edits
  3.  Explanation of how we will handle the review and any redrafts
  4.  Review and agree any changes to be requested on the draft text.  Beginning with Rules 3 and 4
  5.  Next meetings: 20 February and during ICANN 79
  6.  AOB

Look forward to speaking tomorrow

Susan Payne
 Head of Legal Policy
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28 Little Russell Street,
London WC1A 2HN, UK
T +44 (0) 20 7421 8250
Ext 255
comlaude.com<http://comlaude.com>
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