There is a practical issue on determining retroactivity – how far back does it go?  Is it only on standards for review, or does it also include the method of review (ex: would a pending IRP that already has a panel in place then have to start anew before the “new” IRP panel?)  At what point would application of different standards be something that could be detrimental to parties within an ongoing IRP (such as those that have expended large amounts of money on counsel arguing to one standard, only to be required to move to another?)  If there would be more time required for the existing IRPs to reach conclusion because of retroactive application, how are the interests of those who are the other impacted parties (such as competing applicants for new gTLD strings) considered in any additional time requirements? I’m not expressing an opinion either way (retroactivity or not) but just raise these as issues of concern as we look at the retroactive/nonretroactive issue.  


From: Jacob Malthouse <jacob@bigroom.ca>
Date: Thursday, May 21, 2015 at 3:39 PM
To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>
Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org>
Subject: [CCWG-ACCT] interplay between 'old' and 'new' IRPs

Thanks Becky and Paul, this is helpful insight and agree with both your approaches.



Jacob Malthouse
Co-founder & Director, Big Room Inc. 
778-960-6527

On 21 May 2015 at 13:52, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

On the merits, I agree with Becky completely – that is, I agree that a) my preference would be for the reformed (or perhaps “restored” is the better term) IRP to apply to all pending matters; and b) we need to find a way to deal with abusive filings.

 

My main question though is whether or not this group needs to get into that level of detail prior to the implementation of a new IRP process.  I am sure, for example, that the panel appointees will have their own views on the best process to adopt for their own operations.  Perhaps we can suffice with a statement of general principles, adopted as part of the IRP charter, rather than a point-by-point specific code of procedure?

 

Paul

 

 

From: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Sent: Thursday, May 21, 2015 2:18 PM
To: Jacob Malthouse
Cc: accountability-cross-community@icann.org
Subject: Re: [CCWG-ACCT] interplay between 'old' and 'new' IRPs

 

.africa is ICANN's self inflicted wound. They had an easy way to deal with this by following community developed policy in the form of the nGTLD AGB.  

 

The question about retroactive application of a reformed IRP is complicated, but on balance I come down on the side of retroactivity. The "good faith" standard adopted by the Board as a Bylaws amendment on the Consent calendar and over the well reasoned objection of the only stakeholder group that noticed what was going on (RySG) was illegitimate to begin with and has created totally anomalous results - some panels have ignored the new standard and some have followed it.  

 

Having said that, I also think we need much better tools to handle abusive filings more efficiently and I would love to get this conversation going

Sent from my iPad


On May 21, 2015, at 10:55 AM, Jacob Malthouse <jacob@bigroom.ca> wrote:

I have a question about old and new IRPs. Old being the many currently active (notably taking up way more panelists than this group's proposal affords on the standing panel) and how they would relate to a new standing panel. 

 

If the .Africa appeal drags on for example into a second IRP (as it looks like booking.com will), eventually a new appeals system will be put in place. 

 

I'd expect you could then launch a fresh appeal (third IRP) to that new panel because it is basically a new court, presumably followed by a fourth appeal of the appeal.

 

So that's a total of four IRPs for .Africa before going to the courts. 

 

Has any thought gone into how this would work (or not?). 

 

Best, J.

 

 




--
Jacob Malthouse
Co-founder & Director, Big Room Inc. 
778-960-6527