On 29/04/2015 17:33, Jacob Malthouse wrote:
Dear all,
Re: RfR and IRP stress test: 'frivolous' and 'abusive' are a very high bar.
Most panelists would lean towards hearing a case if this is the threshold.
Isn't that a good thing? Shouldn't someone with a reasonable complaint at least have the opportunity to be heard to make their claim? This doesn't mean that they will necessarily be successful in overturning ICANN's decision, that will depend on the merits of their case. If ICANN has acted properly, their complaint will have no effect.
Therefore these words will not be effective in deterring dilatory tactics.
Actually "these words" are not the only restraint on dilatory tactics, they are part of a broader package of hurdles for complainaints: 1. While the complaint is being considered, in the usual case the ordinary process will proceed: that is, the mere fact of a complaint being made in IRP doesn't stop ICANN pressing ahead in its belief that the complaint will be unsuccessful. There is a provision for interim relief, but there are very strict further tests that need to be met before interim relief a complainant could even apply for a pause. 2. There is also a preliminary conciliation process, to further weed out complaints that can be addressed without adjudication. We have heard from previous IRP users that ICANN is the "guilty party" for using this particular provision as a dilatory tactic, dragging out a futile conciliation procedure that complainants dare not escape for fear of being told they have not exhausted their options for conciliation. 3. The IRP complaint is limited to 25 double-spaced pages, which acts to limit undue complexity in the complaints being brought, and helps to ensure they can be dealt with expeditiously. 4. Most significantly, initiation of a complaint is subject to a very tight deadline (far too tight, in my opinion). Many complaints will be time-barred simply because the complainant didn't realise that they would be harmed by a wrongful decision by ICANN before the thirty day deadline has expired. In our discussions we identified this as a problem likely to lead to unfairness, but as far as I can see, the draft proposal does not capture the suggestions raised for rectifying this. 5. Also quite significantly, in my view, the complainant must bear their own legal/advocacy costs for bringing their complaint. Those that have brought an IRP case before will tell you, these costs can be very significant - think six figures. We did discuss in Istanbul making provision so that impecunious complainants could have their costs supported by ICANN, but so far we have made no such provision - although we have clarified that ICANN should bear the costs of the IRP panelists. 6. Finally, by using the IRP the complainant agrees to be bound by it and surrenders their right to appeal to the ordinary courts (except in very limited circumstances). So the IRP would act as a means of removing opportunities for delay. Given all these safeguards and impediments to complainants, I can't see any justification for erecting any further barriers to complaints being heard that are neither frivolous nor vexatious.
Also, there are very few existing precedents. Until the pool of cases is large enough there will be many more cases.
We discussed in Istanbul the possibility that there would be more cases initially, and a declining stream as a body of precedent was gradually established, and I believe there was a consensus that this was desirable. My fear is that the cost and time-bar hurdles (acting separately and in conjunction with each other) will too heavily dissuade people from bringing IRP claims that ought to be brought, that we would all benefit from being brought, and this will retard the development of a body of useful precedent.
Suggest a larger number of panelists at the start, to decrease as the number of cases becomes less due to increased precedent.
I think that is sensible suggestion, but isn't this level of detail as to the appropriate size of the pool at any given time best left to ICANN to decide operationally? Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA