Members: David McAuley, Flip Petillion, Greg Shatan, Kavouss Arasteh, Kristina Rosette, Kurt Pritz, Mike Rodenbaugh, Samantha Eisner (ICANN org), Susan Payne
Guests/Observers: Becky Burr (Board), Liz Le
ICANN Org: Bernard Turcotte, Devan Reed
Apologies: Brenda Brewer
** If your name is missing from attendance or apology, please send note to mssi-secretariat@icann.org **
Agenda:
- Review agenda and updates to SOIs
- Review action items:
- Sam to provide information on costs awards from pre-Transition (2016) IRPs, which may assist with this discussion
- Discussion of Straw Man proposal
- Next call - to be confirmed
Transcript: PDF
Recording:
Documents:
Zoom Chat Transcript:
12:00:08 From Susan Payne to Everyone:
hi everyone. we'll start shortly
12:08:57 From David McAuley (Verisign) to Everyone:
Thanks, Bernie
12:10:21 From Flip Petillion to Everyone:
You’re welcome Susan
12:12:20 From Liz Le - ICANN Org to Everyone:
The work to update the ICANN IRP webpage is underway.
12:13:06 From Mike Rodenbaugh to Everyone:
When is it expected to complete? ICANN said it was underway about eight months ago.
12:15:00 From Liz Le - ICANN Org to Everyone:
It is a priority for org and will be completed as soon as practicable.
12:16:26 From Mike Rodenbaugh to Everyone:
Re the amount of the filing fee…. The filing fee should be consistent with US court filing fees, as per Bylaws 4.3(a)(ix), a purpose of the IRP is to “Provide a mechanism for the resolution of Disputes, as an alternative to legal action in the civil courts of the United States or other jurisdictions.” Therefore, it should not cost materially more to file an IRP than it costs to file such a judicial action.
12:20:52 From Mike Rodenbaugh to Everyone:
I believe reimbursement of the filing fee — only to a prevailing claimant — has always been at the Panel’s discretion.
12:22:04 From Mike Rodenbaugh to Everyone:
It is about $500 in the US
12:23:50 From Greg Shatan to Everyone:
I think Mike makes a good point.
12:24:29 From Flip Petillion to Everyone:
Amount is similar on the continent in Europe
12:24:55 From Flip Petillion to Everyone:
But will ICDR accept to continue the service for that amount?
12:25:09 From Flip Petillion to Everyone:
Although it is only to initiate the proceedings?
12:25:18 From Mike Rodenbaugh to Everyone:
If not, then ICANN pays the difference for administering the proceeding.
12:25:43 From Flip Petillion to Everyone:
Makes sense
12:25:49 From Mike Rodenbaugh to Everyone:
You got it, Susan, thanks
12:26:10 From Greg Shatan to Everyone:
Flip, I believe the Bylaw says that ICANN will make up the difference to ICDR.
12:26:35 From Flip Petillion to Everyone:
If so than we solved this one
12:27:03 From Mike Rodenbaugh to Everyone:
ICANN is supposed to pay for administering the IRP, not claimants through filing fees
12:27:59 From Mike Rodenbaugh to Everyone:
The ICDR fee is current more than 10x the cost of filing a court action
12:28:54 From Susan Payne to Everyone:
goodness David, take care of yourself!
12:29:27 From Mike Rodenbaugh to Everyone:
I doubt it costs nearly $7k to file a court case in Bangladesh
12:29:33 From Mike Rodenbaugh to Everyone:
Or anywhere else in the world
12:31:31 From Flip Petillion to Everyone:
David raises a good point but we need to distinct the cost to initiate the proceedings from the ultimate costs of the arbitrators which we know only later in the proceedings
12:32:01 From Flip Petillion to Everyone:
And icann makes advance payments to cover these fees
12:32:30 From becky to Everyone:
I am a little confused - thought there was a mechanism to address cases where costs are a barrier
12:32:30 From Flip Petillion to Everyone:
If the claimant made advance payments, that claimant will recuperate these if the claim is not frivolous etc.
12:33:14 From Flip Petillion to Everyone:
Good point of Becky but that is another issue
12:33:29 From Mike Rodenbaugh to Everyone:
Indeed Malcolm. In the latest NameCheap decision, the panel fees were almost $850k
12:34:08 From Mike Rodenbaugh to Everyone:
@Becky: costs are ALWAYS a barrier to bringing an IRP or a judicial action
12:34:42 From Mike Rodenbaugh to Everyone:
People ought not have to beg ICANN or a panel to eliminate an excessive filing fee. It ought not be excessive in the first palce
12:35:10 From Mike Rodenbaugh to Everyone:
Today, it is at least 10x excessive in comparison to alternative fora
12:35:26 From Greg Shatan to Everyone:
I think what Malcolm describes violates at least the spirit of the Bylaws.
12:35:58 From Mike Rodenbaugh to Everyone:
Indeed, and ICANN has acknowledged that in recent cases and has been paying the Panel fees from inception of the case
12:36:44 From Mike Rodenbaugh to Everyone:
But they still argue they are not required to do so. Liz has argued that repeatedly in the past.
12:38:31 From Mike Rodenbaugh to Everyone:
We don’t have to fix a set price. We can just reaffirm what the Bylaws say, that fees should be consistent for filing an IRP, as with filing a lawsuit. Otherwise, where they are 10x that cost, there is a chilling effect on filings.
12:41:59 From Mike Rodenbaugh to Everyone:
Why do we care what ICDR charges anyway? There is supposed to be a Standing Panel paid for by ICANN… since 2012…
12:42:50 From Susan Payne to Everyone:
Mike, ICDR will still be in place as the administrator of the IRP, even once the standing panel is in place
12:43:20 From Susan Payne to Everyone:
apologies then Greg I perhaps misunderstood
12:45:36 From Mike Rodenbaugh to Everyone:
Good point Greg. Many consumer arbitrations cost far less than ICDR Commercial Arbitration
12:47:09 From Mike Rodenbaugh to Everyone:
@Becky: the principle is in the Bylaws… IRP is an alternative to court. Therefore, it should not cost more than court. That is the principle.
12:48:37 From Mike Rodenbaugh to Everyone:
ICANN chose the ICDR, and ICANN could choose someone else if ICDR is too expensive.
12:48:49 From Mike Rodenbaugh to Everyone:
ICANN certainly can subsidize the ICDR fee
12:49:30 From Mike Rodenbaugh to Everyone:
Sam is raising a red herring. Nobody is suggesting to tell ICDR to do anything.
12:49:34 From Malcolm Hutty to Everyone:
I think Greg made an excellent suggestion, that we should state explicitly that ICANN should pay all ICDR and panelist fees as they arise, not merely reimburse the claimant at the end.
12:49:37 From Flip Petillion to Everyone:
I handled cases with ICC, ICDR, LCIA, and other organisations and, honestly, ICDR is not expensive
12:49:51 From Kurt Pritz to Everyone:
If left for ICANN to determine the filing fee portion due from the filer, we could set a time certain by which that is done or incorporate that fee determination into the work of this group.
12:50:24 From Greg Shatan to Everyone:
I don’t think there’s disagreement that ICDR will get paid its normal fee.
12:51:12 From Malcolm Hutty to Everyone:
Agree, Greg and Mike
12:51:12 From becky to Everyone:
@mike, I actually don’t think the bylaws principle says each fee and cost associated with the process should be less than a US court case
12:52:17 From David McAuley (Verisign) to Everyone:
+1 Becky
12:53:09 From Flip Petillion to Everyone:
@becky and David: let’s check that - it’s indeed important we clarify that
12:53:36 From Mike Rodenbaugh to Everyone:
@Becky I didn’t say that. They say IRP should be an alternative to court. They say an IRP should be ‘accessible’. They do not say an IRP should cost 10x more to file than a court case.
12:57:08 From Flip Petillion to Everyone:
Or, Susan, a claimant wants to nominate a panellist who is not a member of the standing panel
13:02:01 From David McAuley (Verisign) to Everyone:
How would you know they are prevailing prior to the declaration?
13:03:15 From Flip Petillion to Everyone:
@david: that is not the question i think
13:03:34 From Sam Eisner - ICANN Org to Everyone:
We no longer have single panelists under the new bylaws
13:03:54 From Flip Petillion to Everyone:
Except emergency panelists
13:04:04 From Sam Eisner - ICANN Org to Everyone:
Thanks Flip, correct
13:05:11 From David McAuley (Verisign) to Everyone:
i took my hand down - may have misunderstood Flip's point
13:06:27 From Liz Le - ICANN Org to Everyone:
I need to drop for another meeting. Thanks everyone.
13:06:52 From Susan Payne to Everyone:
thanks Liz
13:10:20 From Mike Rodenbaugh to Everyone:
Sometimes there have been post-hearing briefing. Sometimes not.
13:11:36 From Mike Rodenbaugh to Everyone:
+1 Greg
13:14:13 From Mike Rodenbaugh to Everyone:
Administrative cost is the filing fee entirely paid by claimants today, even though the Bylaws have said for six year that they should be borne by ICANN.
13:17:23 From David McAuley (Verisign) to Everyone:
more panelists on appeal
13:18:30 From Mike Rodenbaugh to Everyone:
Appeals are to be heard en bans by the entire Standing Panel. If it ever exists. For the past ten years, there has been no ability to appeal an IRP case, despite the clear Bylaws on that point, because there has been no Standing Panel.
13:18:43 From Mike Rodenbaugh to Everyone:
“En banc”
13:19:41 From David McAuley (Verisign) to Everyone:
How could a contingency fee work in a declaration setting such as IRP
13:20:43 From David McAuley (Verisign) to Everyone:
a declaration should not award money damages
13:21:23 From Flip Petillion to Everyone:
@Kavus: the emergency arbitrator evaluates what is an emergency
13:22:03 From Flip Petillion to Everyone:
@ David: i referred to the no cure no pay system - unrelated to damges
13:22:27 From David McAuley (Verisign) to Everyone:
OK, thanks Flip
13:23:08 From Flip Petillion to Everyone:
Get better soon David! Take care - All: i need to leave. Have a great 2023 !
13:23:23 From David McAuley (Verisign) to Everyone:
Thank you
13:26:49 From Sam Eisner - ICANN Org to Everyone:
“A Claimant may request interim relief. Interim relief may include prospective relief, interlocutory relief, or declaratory or injunctive relief, and specifically may include a stay of the challenged ICANN action or decision until such time as the opinion of the IRP Panel is considered as described in Section 4.3(o)(iv), in order to maintain the status quo. A single member of the Standing Panel ("Emergency Panelist") shall be selected to adjudicate requests for interim relief.”
13:29:05 From David McAuley (Verisign) to Everyone:
when is next call
13:29:20 From David McAuley (Verisign) to Everyone:
sounds good
13:30:03 From Greg Shatan to Everyone:
I think all or almost all of what Kavouss has requested is already stated in the Bylaws. The possible exception is administrative fees.
13:30:13 From David McAuley (Verisign) to Everyone:
Thanks all, good bye
