Attendees: 

Members:  David McAuley, Flip Petillion, Kristina Rosette, Malcolm Hutty, Susan Payne

Guests/Observers:  Becky Burr, Kate Wallace, Liz Le

ICANN Org: Bernard Turcotte, Brenda Brewer

Apologies: 

** If your name is missing from attendance or apology, please send note to brenda.brewer@icann.org **

Agenda:

  1. Review agenda and updates to SOIs
  2. Action items:
    1. BT to circulate text of the ICDR rule on consolidation
      • Done: Art 8 Consolidation (page 18)
    2. All to review, with particular regard to the consolidation process and role of the consolidation arbitrator and come to the meeting ready to discuss
  3. Discussion on the ICDR process for consolidation
  4. Continue review and discussion of other elements of the small team’s proposed revision to Rule 7, to the extent not addressed by the above
  5. AOB
  6. Next call 15 August 1800 UTC

Transcript: PDF

Recordings: 

Documents: 

Zoom Chat Transcript:  

13:04:42 From David McAuley (Verisign) To Everyone:
    I can make it
13:05:46 From Flip Petillion To Everyone:
    I can’t sorry - mentioned it in the chat at the previous call
13:13:45 From David McAuley (Verisign) To Everyone:
    am I correct, Flip, that you believe a single arbitrator makes better sense to decide consolidation question based on your experience?
13:16:17 From Flip Petillion To Everyone:
    Hi David; question is whether the single arbitrator would be ‘inactive’ in the pending cases or ‘the first’ to be appointed. The inactive ones may have a more neutral view
13:16:42 From David McAuley (Verisign) To Everyone:
    thank you, Flip
13:22:53 From Flip Petillion To Everyone:
    We could but a neutral would be preferable, I’d say
13:25:33 From David McAuley (Verisign) To Everyone:
    Thanks, Susan, bad memory on my part
13:26:39 From David McAuley (Verisign) To Everyone:
    First appointed panel, thanks Flip
13:28:31 From David McAuley (Verisign) To Everyone:
    so if the first panel denies consolidation then that ends the matter. I wonder if we should state that to be clear
13:36:00 From Kristina Rosette To Everyone:
    Sounds to me that the consolidation arbitrator path may address 2 concerns - neutrality and the possibility that the first-to-commence IRP does not yet have a Standing Panel in place.  So, I would support it.  Perhaps with asterisk that notes the original proposal?
13:38:01 From David McAuley (Verisign) To Everyone:
    that too is interesting and useful input Flip
13:40:42 From David McAuley (Verisign) To Everyone:
    would that be a function of time or decisions made, Kristina?
13:41:24 From Kristina Rosette To Everyone:
    Thank you. I thought we'd addressed it, but couldn't recall.
13:41:35 From Kristina Rosette To Everyone:
    David - what is "that"?
13:41:54 From David McAuley (Verisign) To Everyone:
    the time after which no consolidation would be available.
13:43:40 From Kristina Rosette To Everyone:
    We could do it both ways, David.  I'm inclined to prefer a function of time b/c, at a certain point, it wouldn't be fair to the first-filed complainant to allow consolidation.
13:43:58 From David McAuley (Verisign) To Everyone:
    thanks
13:44:48 From Kristina Rosette To Everyone:
    In theory, under our proposal, the later filer - who is seeking consolidation - could have filed its IRP 6 months after the earlier filed proceeding. So, 21 or 28 days from publication of the later filed one would be as much as 7 months after the first proceeding was initiated.
13:45:03 From Flip Petillion To Everyone:
    Yes, but what if the first acts very quickly to avoid consolidation ?
13:46:02 From Flip Petillion To Everyone:
    I can imagine Susan
13:46:41 From Flip Petillion To Everyone:
    He is
13:46:48 From David McAuley (Verisign) To Everyone:
    me also - very challenging, especially as one panle will rule first if they remain separate and that then raises the issue of precedent.
13:47:44 From Kristina Rosette To Everyone:
    Flip - do you mean the first Panel or the first complainant?  If complainant, I don't believe the complainant has enough control over the proceeding's pace for that to happen.  If Panel, I don't believe the Panel could move so quickly (while staying within the rules) to avoid consolidation.
13:48:06 From Kristina Rosette To Everyone:
    I'm sufficiently neutral.  I can support the small group's proposal.  I was on that group, after all. :-)
13:48:49 From Flip Petillion To Everyone:
    I C your point Kristina
13:49:03 From Flip Petillion To Everyone:
    I support the small group’s proposal as well
13:54:00 From David McAuley (Verisign) To Everyone:
    I agree w Susan - 9.1 of ICDR seems less preferable to me than 7.5 in right column
13:54:36 From Kristina Rosette To Everyone:
    Prefer small group proposal, here.
13:59:11 From David McAuley (Verisign) To Everyone:
    i also agree w Susan here
14:00:59 From Kristina Rosette To Everyone:
    Support comparable language (w/r/t stay)
14:03:56 From David McAuley (Verisign) To Everyone:
    fair enough as to those moving for consolidation
14:04:54 From Kristina Rosette To Everyone:
    Excellent point. Let me rephrase - only the parties in the non-moving proceeding should be able to object to a stay while consolidation is being considered.
14:05:40 From Flip Petillion To Everyone:
    +1
14:09:21 From David McAuley (Verisign) To Everyone:
    I opt for small team approach
14:12:32 From David McAuley (Verisign) To Everyone:
    + 1 Kristina, a 'brief' statement of reasons
14:13:29 From David McAuley (Verisign) To Everyone:
    Thank you for side-by-side doc, Susan
14:13:50 From Malcolm Hutty To Everyone:
    Christina's comment suggests an interesting if tangential point: do we state clearly anywhere that decisions on these procedural matters are not intended to set a precedent?
14:14:32 From Malcolm Hutty To Everyone:
    "Kristina", apologies
14:16:17 From Flip Petillion To Everyone:
    180 days? Not realistic
14:17:17 From Kristina Rosette To Everyone:
    @Flip - I'm not saying 180 days is realistic. I'm using it to try to come up with a deadline by which any request for consolidation would automatically be untimely.
14:17:34 From Becky Burr To Everyone:
    Should be a very high bar to late consolidation
14:17:58 From Flip Petillion To Everyone:
    I understand - but want to state it that 180 is really not reaslistic
14:18:05 From Kristina Rosette To Everyone:
    60 days from the date of commencement of the latest filed of those proceedings to be considered for consolidation.
14:18:17 From David McAuley (Verisign) To Everyone:
    + 1 Becky re high bar
14:18:27 From Kristina Rosette To Everyone:
    never mind. that's wrong. we have that time limit, which Susan just said.
14:19:03 From David McAuley (Verisign) To Everyone:
    OK< thanks Susan
14:19:25 From Kristina Rosette To Everyone:
    I'm sticking with the clock to run from the first filed proceedings' commencement.
14:19:47 From Kristina Rosette To Everyone:
    I can live with a high bar after 60 days.
14:20:19 From Flip Petillion To Everyone:
    My last one : near to 3 years !
14:24:40 From David McAuley (Verisign) To Everyone:
    I agree with you, Susan re notification. ICANN may put out annual or otherwise reminder that IRPs are published at a certain page
14:25:24 From Flip Petillion To Everyone:
    There is a page now - updates should be more accurate and we solve this problem
14:26:12 From Flip Petillion To Everyone:
    Thanks Susan and all
14:26:31 From David McAuley (Verisign) To Everyone:
    Yes, thanks Susan and colleagues
14:27:32 From Flip Petillion To Everyone:
    I will not join sorry
14:27:44 From David McAuley (Verisign) To Everyone:
    can join if we have mtg
14:27:57 From Kristina Rosette To Everyone:
    Thanks, all. Have a good week. I plan to be on next week, but would love the time back if we're not going to have quorum.
14:28:22 From Bernard Turcotte To Everyone:
    bye all
14:28:32 From Flip Petillion To Everyone:
    bye




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