Malcolm, I don¹t completely agree that the ³inadequate remedy² prong of this analysis is irrelevant. It is true in the ordinary setting we are talking about an inadequate remedy ³at law² - and (in the US at least) that usually means money damages won¹t resolve. But putting money damages aside, I don¹t know why an individual/entity seeking prospective injunctive relief should not be called upon to demonstrate that an action of the board/staff cannot be rolled back effectively, and any harm ³undone.² I agree that the test formulated is not simply a ³standing² test - the test for standing is ³materially affected.² The test in the chart relates to when a court will entertain a request for prospective relief from someone with standing (that is to say has been or will be materially affected, et.c) J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz On 4/8/15, 7:31 AM, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 08/04/2015 00:00, Burr, Becky wrote:
The chart below reflects my quick research regarding how this issue is handled in different (English speaking) jurisdictions,
Our task is to decide (a) whether we agree that this kind of prospective harm should be covered, and if so, what standard should be applied. Please let me know your thoughts.
As to prospective harm, I agree that it should be covered.
As to the standard, I have a comment on the chart: it reflects that some jurisdictions regard injunctive relief as particularly intrusive, and so only available where the harm could not be compensated adequately with monetary damages.
In the case of the IRP, as far as I know nobody is proposing that it be empowered to award monetary damages against ICANN, so the "irreparable harm" standard wouldn't be appropriate as a threshold.
In ICANN's case, I'm not sure we need be so fixated on 'harm' at all: we should be keen to ensure ICANN can be restrained from activity in breach of its bylaws or outside its mission. I would favour a liberal approach to standing and that instead we ensure that the IRP can swiftly and efficiently dispose of frivolous complaints or those with no reasponable prospect of success, without causing disruption to ordinary affairs.
So as to standing, let me suggest
"any party who has been materially affected by a decision or action by ICANN, or who will be materially affected if an imminent decision or action is made".
However some of the tests in the chart you copy speak to that "swift and efficient disposal" I mentioned: things like, is there a serious issue, is there a reasonable prospect of success on the merits? To my mind that's not so much "who" should have the right to complain, but whether a complaint should be struck out early. It's important to provide for this too, rather than relying on standing alone.
Here I would suggest providing for early strike out if
i) the complaint has no reasonable prospect of success on the merits; ii) the correction of a failure to follow process would not materially affect the outcome; iii) intervention by the IRP would be premature
The last would cover, for example a complaint that a step in a process wasn't followed (e.g. failure to consider a material fact) but that the process could correct itself later (e.g. by considering that fact at a later stage).
Any other suggestions?
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net _&d=AwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W DDkMr4k&m=7kpzgEwwMUjQEQqR9dBDJ6XrHeVTxs9huxbxBZEOa1M&s=44oF3OvkQ2jIv__V6n Wk-G3qD2KBpjmnJ9V8-O62yUQ&e=
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