Members: Becky Burr, David McAuley, Flip Petillion, Greg Shatan, Kristina Rosette, Malcolm Hutty, Mike Rodenbaugh, Sam Eisner, Susan Payne
Guests/Observers: Kate Wallace, Liz Le
ICANN Org: Bernard Turcotte, Devan Reed
Apologies: Brenda Brewer
** If your name is missing from attendance or apology, please send note to brenda.brewer@icann.org **
Agenda:
- Review agenda and updates to SOIs
- Action Items: Mike R to share proposals for who/when Org ought to have a duty to notify of commencement of an IRP
- Conclude initial review and discussion of small team’s proposed revision to Rule 7 (clean, annotated and redline versions reattached for convenience):
- Continuing from Rule 7 (19)
- Discussion of Mike R’s proposal (from action items)
- Next steps, timing, sessions in Hamburg
- Next call 29 August 1800 UTC
- AOB
Transcript: PDF
Recordings:
Documents: PDF Rule 7_12 July 2023 Clean version of text
Zoom Chat Transcript:
00:29:59 David McAuley (Verisign): Becky, Greg, and Flip will likely join
00:30:39 Flip Petillion: Now I may have to leave earlier. Apologies for that
00:30:57 David McAuley (Verisign): sorry about that - Flip I see you are here and will not be arriving late
00:42:33 Kristina Rosette: We talked about it briefly, but I don't think we reached a conclusion generally or specifically as to the Panel's deadlie.
00:42:37 Kristina Rosette: deadline.
00:46:14 David McAuley (Verisign): sounds reasonable, what Malcolm suggests
00:46:19 Kristina Rosette: Malcolm's suggestion seems fair.
00:46:33 Mike Rodenbaugh: I would support that too
00:47:30 Flip Petillion: +1
00:51:37 Mike Rodenbaugh: The intervenor might not even know the panel yet, especially if the Standing Panel is still not in place
00:52:27 Mike Rodenbaugh: Why not specifically say “having the primary intent to create a conflict of interest with an appointed panelist”?
00:52:56 Kristina Rosette: That works for me, Mike.
00:53:55 Kristina Rosette: have to step away for a moment
00:56:02 Mike Rodenbaugh: It seems to me that the IRP claimant should be able to oppose the motion for intervention, without the Panel ordering briefing
01:00:05 Flip Petillion: Agree with that
01:00:10 Sam Eisner - ICANN Org: ICANN might also have a position on the propriety of intervention
01:00:21 Sam Eisner - ICANN Org: So it should probably be a right to all of the parties to the IRP
01:00:36 Mike Rodenbaugh: That is fair, Sam
01:00:57 Flip Petillion: It indeed is
01:01:53 David McAuley (Verisign): agreed
01:02:04 Kristina Rosette: Agree with Sam's proposal. Omission of opposition was definitely more of an oversight than intentional
01:02:50 Malcolm Hutty: @David McAuley (Verisign) If the Parties don't oppose the intervention, what is there to say if they are ordered to brief the panel?
01:03:18 Flip Petillion: Even if not provided the opposition could be made - standard in arbitration
01:04:23 David McAuley (Verisign): I don't have a good example, Malcolm, but I am thinking there must be case(s) where panel may want to be briefed -
01:09:58 Flip Petillion: Good point Mike - i only know it at EU Court of Justice level - there is no possibility to comment/reply or to object to an amicus brief - would need to double check though
01:11:44 Mike Rodenbaugh: I agree with Malcolm and remove the “but does not satisfy the standing requirements” proviso. The affected party should be able to decide if they would prefer just to file a brief, rather than fully participate in an expensive IRP case.
01:12:57 Kristina Rosette: Here's part of Rule 29 of the Federal Rules of Civil Procedure:
01:13:23 Flip Petillion: That is how i see an amicus: an amicus does not participate - it just files a brief
01:14:09 becky: This seems way more permissive than any court other than in the Supreme Court
01:14:12 Kristina Rosette: (2) When Permitted. The United States or its officer or agency or a state may file an amicus brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge's disqualification.
01:14:23 Kristina Rosette: Oops. Federal Rules of Appellate Procedure.
01:14:41 becky: And even then you have to be a member of the Supreme Court bar
01:20:26 David McAuley (Verisign): one of the purposes of IRP is o reduce disputes as well - reasonable allowance of amici status, under control of panel, seems sensible to me - let the panel manage this on the ground
01:23:17 Flip Petillion: I tend to agree with you David
01:23:33 Flip Petillion: On this point :-)
01:23:43 David McAuley (Verisign): :-)
01:27:45 David McAuley (Verisign): this could be an amicus who is supporting ICANN's position
01:27:57 David McAuley (Verisign): subpara iv that is
01:28:27 Sam Eisner - ICANN Org: I think there’s a potential for any amicus to support ICANN’s position or the claimant’s position
01:28:44 David McAuley (Verisign): but this one specifically seems that way to me
01:30:41 Bernard Turcotte: Time check - 28 minutes left in call
01:31:22 Kristina Rosette: In light of the opposition addition and the removal of the "don't have standing to be a Claimant" language, I think we should remove iv.
01:39:19 David McAuley (Verisign): I think Malcolm and Kristina make fair points about introductory phrasing. But I also suspect we won't solve that in this call and maybe we should do this on list and speak about plans for ICANN 78 at a point in this call.
01:39:42 Flip Petillion: I will come back on it in mail or next call - I must leave - Apologies - Talk to you soon!
01:43:31 David McAuley (Verisign): Plus 1 @ Susan
01:49:52 Kristina Rosette: I support trying to get this out for public comment before Hamburg - even if that means we have to meet weekly.
01:55:16 Kristina Rosette: Got it. Definitely support going out for public comment. Prepared to meet weekly to get there.
01:56:39 David McAuley (Verisign): weekly calls ok w me
01:56:53 Bernard Turcotte: bye all
