Dear Secretariat, This is to improve the language of what is transcribed. See Below *Comments – Substantive discussions:* *David McAuley - we had provided a question to Sidley and they had confirmed there was a problem with the Timing issue. Since then MH has taken on looking at this issue. Over to MH for a discussion on the issue.* *Kavouss Arasteh - when we review the comments should the number of comments compared with the number of CCWG which adopted the provisions which were the basis of comments are very few - does it justify changing our recommendation which were approved by the plenary.* *David McAuley - Note wrt to timing counsel has noted there is a timing so we have to consider this. the point is we consider the comments and respond to them - it does not mean that we have to agree with them.* *Malcolm Hutty - My understanding is different from KA - the plenary only approved that we should put this out for public comment and not they approved the USP. So we need to go through these.* *Kavouss Arasteh - This is the responsibility of the CCWG-Accountability so how will we manage this?* *David McAuley - we are not a a sub-group of the CCWG-Accountability.* *David McAuley: I agree w/Malcolm on this part* * a. Timing for claim filing* *Malcolm Hutty - (review of MH document on this).* *Kavouss Arasteh - irrespective of whether we agree to change this - I have never heard of a process that has had no time limit for reply7action like taxes - we should agree that the option of no limit is off the table.* *Malcolm Hutty - there have been two comments that we put a moratorium on this and publish without a limit for now and re-evaluate later. If we were to go with that - how would we do this - one way could be to remove any numerical time bar and say it is the responsibility of the Panel. Third option - no moratorium - we need a revised time bar that is consistent with the Bylaws which can be defended. (first option is not any time limit). So, the first question is do we put this off or not.* *Becky Burr - when you are talking about no time period - are we talking about repose or time to file? KA is correct that there is always a time limit like a statute of limitations.* *Malcolm Hutty - (the Business Constituency text on moratorium) so more than just about the repose. If we accept this we can stop this now - if not we need to go on.* *David McAuley - I would be opposed to what the proposal of a moratorium - a time limit which typically ensues for courts or ... Can we cur through this to say there is a time bar but the panel could rule that a claim could be brought beyond these time bars for reasons?* *Malcolm Hutty - this would handle most of the concerns. But would not satisfy the bias question.* *Becky Burr 2: I would be willing to dispense with an absolute repose, but very uncomfortable without a "statute of limitations" commencing from a knows or should have known standard* *Becky Burr 2: 6 months from the time you know or should know that you have/will be harmed* *Becky Burr 2: plus David's fundamental fairness caveat* *Kavouss Arasteh - not in favour of DM's proposal. I would suggest the we do the reverse of what is recommended by the Business Community - pick a time and state to review within two / three years based on actual harm occurred * *Malcolm Hutty - KA proposal could be considered as being against the Bylaws in a legal opinion.* *Becky Burr 2: if we take this approach we need to consider how the CEP process affects/extends the filing deadline and greatly extends the timeline* *Becky Burr 2: please also my comments are made in my personal capacity and I am not speaking for the Board or ICANN* *David McAuley - We are going to have to work these issues on the list. I would ask that MH summarize this for the list so we can kick off those discussions.* *Kavouss Arasteh - if we propose a new approach we will have to go back to public comment - do not like the idea of doing something completely new.* *Action Item: MH to summarize discussions on Timing point and post to the list for further discussion.* * b. Parties – Joinder, etc* *David McAuley - (presentation of DM paper).* *Kavouss Arasteh - retroactive application of rules - there is no logic in this. This will bring instability to the process.* *David McAuley - KA this is specified in the Bylaws but I will mention your point in my summary.* *Action Item: DM to summarize discussions on Parties and Joinder points and post to the list for further discussion.* * 4. AOB (none)* *David McAuley - reminder to everyone to keep an eye on the list and participate.* *Pls replace my comments with the above* *Regards* *Kavouss * 2017-03-02 18:51 GMT+01:00 MSSI Secretariat <mssi-secretariat@icann.org>:
Hello all,
The notes, recordings and transcripts for the IRP-IOT Meeting #15 on 2 March 2017 will be available here: https://community.icann.org/x/OYPRAw
A copy of the notes may be found below.
With kind regards,
*B**renda **B**rewer,** Projects & Operations Assistant *
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers
*Action Items:*
· *DM to confirm to IOT when he would be available to meet members of the IOT in Copenhagen.*
· *MH to summarize discussions on Timing point and post to the list for further discussion.*
· *DM to summarize discussions on Parties and Joinder points and post to the list for further discussion.*
*Notes (including relevant parts of the chat): *
10 Participants at start if call
*1. Administrivia*
a. Roll - no audio only
b. SoI (none)
*2. Considering Comments: *
David McAuley - Our job is becoming largely advisory wrt to the panel. However, the rules are our decisional role. Will try to get some space at ICANN 58 for a few hours so we can talk about this - will post a note to the group regarding.
Avri Doria: what is the purpose of these private meetings?
David McAuley - just making myself available to help people with analyzing the comments.
Action Item: DM to confirm to IOT when he would be available to meet members of the IOT in Copenhagen.
* ii. Upcoming calls*
10 (plenary), 23 and 30 March
* 3. Comments – Substantive discussions:*
David McAuley - we had provided a question to Sidley and they had confirmed there was a problem with the Timing issue. Since then MH has taken on looking at this issue. Over to MH for a discussion on the issue.
Kavouss Arasteh - when we review the comments however the number of comments - does it justify changing our recommendation which were approved by the plenary.
David McAuley - Note wrt to timing counsel has noted there is a timing so we have to consider this. the point is we consider the comments and respond to them - it does not mean that we have to agree with them.
Malcolm Hutty - My understanding is different from KA - the plenary only approved that we should put this out for public comment and not they approved the USP. So we need to go through these.
Kavouss Arasteh - This is the responsibility of approval by the CCWG-Accountability so how will we manage this?
David McAuley - we are not a a sub-group of the CCWG-Accountability.
David McAuley: I agree w/Malcolm on this part
* a. Timing for claim filing*
Malcolm Hutty - (review of MH document on this).
Kavouss Arasteh - irrespective of if we agree to change this - I have never heard of a process that has no time limit like taxes - we should agree that the option of no limit is off the table.
Malcolm Hutty - there have been two comments that we put a moratorium on this and publish without a limit for now and re-evaluate later. If we were to go with that - how would we do this - one way could be to remove any numerical time bar and say it is the responsibility of the Panel. Third option - no moratorium - we need a revised time bar that is consistent with the Bylaws which can be defended. (first option is not any time limit). So, the first question is do we put this off or not.
Becky Burr - when you are talking about no time period - are we talking about repose or time to file? KA is correct that there is always a time limit like a statute of limitations.
Malcolm Hutty - (the Business Constituency text on moratorium) so more than just about the repose. If we accept this we can stop this now - if not we need to go on.
David McAuley - I would be opposed to what the proposal of a moratorium - a time limit which typically ensues for courts or ... Can we cur through this to say there is a time bar but the panel could rule that a claim could be brought beyond these time bars for reasons?
Malcolm Hutty - this would handle most of the concerns. But would not satisfy the bias question.
Becky Burr 2: I would be willing to dispense with an absolute repose, but very uncomfortable without a "statute of limitations" commencing from a knows or should have known standard
Becky Burr 2: 6 months from the time you know or should know that you have/will be harmed
Becky Burr 2: plus David's fundamental fairness caveat
Kavouss Arasteh - not in favour of DM's proposal. I would suggest the we do the reverse of what is recommended by the Business Community - pick a time and promise to review within two years based on actual issues.
Malcolm Hutty - KA proposal could be considered as being against the Bylaws in a legal opinion.
Becky Burr 2: if we take this approach we need to consider how the CEP process affects/extends the filing deadline and greatly extends the timeline
Becky Burr 2: please also my comments are made in my personal capacity and I am not speaking for the Board or ICANN
David McAuley - We are going to have to work these issues on the list. I would ask that MH summarize this for the list so we can kick off those discussions.
Kavouss Arasteh - if we propose a new approach we will have to go back to public comment - do not like the idea of doing something completely new.
Action Item: MH to summarize discussions on Timing point and post to the list for further discussion.
* b. Parties – Joinder, etc*
David McAuley - (presentation of DM paper).
Kavouss Arasteh - retroactive application of rules - there is no logic in this. This will bring instability to the process.
David McAuley - KA this is specified in the Bylaws but I will mention your point in my summary.
Action Item: DM to summarize discussions on Parties and Joinder points and post to the list for further discussion.
* 4. AOB (none)*
David McAuley - reminder to everyone to keep an eye on the list and participate.
*Adjourned*
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