Sub-group Members: Avri Doria, Becky Burr, Marianne Georgelin, Olga Cavalli, Tijani Ben Jemaa, Arun Sukumar, Robin Gross, David McAuley, Kate Wallace, Amy Stathos (10)
Counsel: Fran Faircloth, Edward McNicholas, Holly Gregory (3)
Staff: Bernie Turcotte, Brenda Brewer, Yuko Green, Trang Nguyen
Apologies:
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p298cv22hfv/
The audio recording is available here: http://audio.icann.org/accountability/irp-iot-3-01jun16-en.mp3
Anybody not in Adobe: none.
Holly J. Gregory (Sidley): Fran Faircloth is an associate with Sidley
BBurr - Will present slide IRP IOT Procedural Issues Agenda.
HGregory - the questions could use some refinement and are not meant to assume any answer. Also have a reference vs the Bylaws. always need to be grounded in the Bylaws.
IRP Provider - – Should the rules specify requirements for the provider’s office functions, e.g. online dockets, etc?
DMcAuley - we should let the tender handle this - use place holders in the meantime. We may let the provider influence the answer to this.
BBurr - there will be minimal requirements but agree with DM.
DMcAuley - what are the thoughts of ICANN staff that currently handle IRP for ICANN.
HGregory - If you think it would be useful we are creating a document for ourselves as to how the current process currently works.
Amy - It may be helpful to have a call with Sidley to discuss how it currently works. One question is what decisions can the provider make vs requiring a panel.
BBurr - this is useful and could be similar to a court clerk.
ADoria - given this will be standing body there could be procedures to allow those people to make some of those decisions. BBurr - useful.
BBurr - Amy it would be useful to have a list split into buckets regarding who should be making what decisions and how.
BBurr - Standing Panel - should there be an application form - should we be doing this or leave to panel or a mix? One of the more complex task for this group will be how the community will bring a suggestion of a panel to the ICANN Board.
DMcAuley - My strong preference is that we develop an application form even if it is simple vs having the panel do this.
EMcNichols has joined – phone only
BBurr - the consensus seems to be this group would prepare the basic application form and could elaborate further requirements - BBurr will provide this.
Unknown - could use a system similar to that used by the US govt civil service.
BBurr - interesting - given we do not know who will apply and be available. Anything but general criteria initially, until there is an applicant, may be difficult.
Holly J. Gregory (Sidley): Also need to consider whether if there is a public rating/ranking some highly qualified candidates may be discouraged from applying.
BBurr - Suggest DM and I go through the documentation and produce a document to allow for a deeper dive on this topic next week.
BBurr - Training - does ICANN have materials that would be useful for training panelists? If the ICANN staff present could look into this it would be appreciated.
David McAuley: This ICANN context training is so important - need to do this somehow, not sure how
Amy Stathos: We do have some training materials that are public. We can try to help gather those and send information to the group
Holly J. Gregory (Sidley): Template for orientation /training of panelists based on other "on-boarding" of CEO/Board/ new employees is a good idea
BBurr - the point of having a standing panel is to have people who can generate better decisions.
BBurr - Conflicts and Impartiality issues have to be addressed with disclosure. Annual updating? Term limits - proposal is clear to 1 time 5-year term with no possibility of renewal. Post-employment preclusion should be there but the period is not discussed
David McAuley: Maybe have two steps in conflicts disclosures – first when appointed to stnd panel and next when assigned to any one case more tailored to that case and parties
DMcAuley - Re: 1 term only is not in the Bylaws.?
BBurr - that seems to be correct. Would ask Holly et al. if there are examples of conflict and impartiality rules in place which we could borrow.
Holly J. Gregory (Sidley): This issue was taken back to CCWG in the bylaw drafting process and it was agreed to leave for implementation
BBurr - lets not re-invent the wheel if we can avoid it.
Amy Stathos: There is also the International Bar Association Guidelines on Conflicts of Interest in International Arbitration
BBurr - Pre-hearing process - Emergency relief? what are the nuts and bolts of the operation.
Unknown - there are two extremes on this. We may want to walk the middle-ground on this.
BBurr - we want something more than just a napkin but do not want to bounce out people on technicalities.
DMcAuley: re Emergency relief - One of the members of the standing panel could be a magistrate to deal with such questions.
BBurr - CEP Proposal has CEP but either party after the first meeting can decide it will not work and invoke more formal mediation. Allows ICANN to continue to control its CEP. One of the most oft heard complaint in this area in the CCWG were about the CEP.
Amy Stathos: In terms of Emergency Panelist - note that the new Bylaws current state that: "A single member of the Standing Panel (“Emergency Panelist”) shall be selected to adjudicate requests for interim relief." CEP was added in 2013 without any specific issue in mind.
Becky Burr: right Bernie - so it seems to me we should not focus on CEP in this group. Mediation is the out here, and any WS2 CEP improvements can easily be folded into this process when developed. If this group has observations about CEP these should be fed to that WS2 group.
AStathos - process starts when a party requests CEP
BBurr - Filings and Amended Pleadings - I know there were page limits in the Bylaws - Can Holly remind us about the state of these details in the current Bylaws? Did we retain these?
GHolly - I believe these were decided to be implementation.
BBurr - for limits it would be useful to have a side by side of the current bylaws and what other relevant bodies recommend use so there are sensible rules to maintain reality of scope and costs.
DMcAuley - would be good to have the input from Amy regarding the page limit. All pleadings should have a statement signed by the requester they have read the relevant part of the Bylaws (eg frivolous etc.) .
Holly J. Gregory (Sidley): Agreed Becky. That is part of the purpose of outlining the current process/rules.
Holly J. Gregory (Sidley): will work with Amy to get that done, Becky. this may take a week or two but will work as quickly as we can.
BBurr - Motions - early dispositive motions - in the current Bylaws? CCWG was very concerned with dealing with frivolous or abusive claims. Were there such rules Amy.
Amy Stathos: Hi All - As this meeting was added to the calendar just yesterday, I have a competing meeting that starts at 11:00 a.m. PDT so I have to drop off in the next few minutes. there is no specific requirements for motions of any kind. It could be useful for the type of things that are being described here. Panelist have sometimes asked for advanced information on specific issues.
BBurr - we are improving the process and we have to ensure we sharpen the definition of the issues.
David McAuley: Anything that can sharpen issues and/or shorten (fairly) the process is good, IMO
Marianne Georgelin: I agree with David
BBurr - Intervention, Joinder and Consolidation. ICANN has identified a difficulty in some of these situations where a dispute was bet ICANN and a party but involved another party. ICDR rules seem to allow for some form of intervention. We want to think about this carefully - we do not want anyone who wants to intervene yet you want to ensure that the right parties can present. Consolidation and the rules for this and bi-furcation - this has never happened.
EMcNicholas - Amicus Brief could be another option that would allow parties to contribute without fully jumping in.
ICANN - consolidation has occurred.
BBurr - process for selection - the general notion in the CCWG - each party would select one panelist and those would select the third - this is odd in a standing panel. Choice of law and jurisdiction - interesting discussion to have. ICANN for the foreseeable future will continue to be a California Corp.
HGregory - Internal affairs doctrine implies that the bylaws be interpreted under the law of the place of inc. WS2 jurisdiction is a separate topic.
DMcAuley - IRP claims may be on application vs interpretation.
BBurr - here the discussion need to be is there a circumstance where the choice of law would be other than ICANN's place of incorporation. We are going to have to do a deeper dive on this. Another issue will be WHERE hearings take place and what accommodations have to be made for different stakeholders. Currency of settlement is not an issue as there is no reason for monetary decisions.
Holly J. Gregory (Sidley): this is for fee shifting
David McAuley: Agreed - the decisions will be binary in a sense - yes or no on violation of mission
David McAuley: ok - good point Holly
Holly J. Gregory (Sidley): We drafted the question poorly re currency
KWallace - re Where hearings should take place - should look at IF hearings will be allowed. This need to be discussed. HGregory - agrees with this.
BBurr - Format of arbitration?
HGregory - is representation by counsel allowed, if so do they have to be a lawyer etc.
BBurr - filing fee or deposit - goes along with the questions of prevention of frivolous suits along with cost shifting. We did not spend a lot of time talking about such things as filing fees etc.
David McAuley: Good question but fundamentally shouldn't a claimant be able to represent self if they want.
Holly J. Gregory (Sidley): Agree David -- but are counsel also allowed and if so must they be lawyers?
David McAuley: these are good q's Holly that we need to think through
BBurr - slides Format of Arbitration.....Discovery, Evidence and Witnesses - models make quite a difference.
BBurr - hope we can get input from Amy and Kate on ICANN's experience in this area.
EMcNicholas - mid-way model of disclosure requires party's have to disclose the documents they will need which removes the costs associated with discovery.
BBurr - this could be optimal. also what the panel can ask for is relevant an interesting. Appellate procedures. This is an introduction to the topic and helps lay out the scope of our work. Would like general observations from the participants on the way forward. Would also suggest there is some work to do and not have a call next week and use the time to organize the calendar vs the topics and the begin to move forward substantively in two weeks., Seems ok to all. People in this group should start thinking about these issues. Not planning to have F2F discussions on this in Helsinki - if there is a call there would be remote participation.
Adjourned.
Documents Presented
Chat Transcript
Brenda Brewer:Welcome all to IRP Implementation Oversight Team Meeting #3 on 1 June 2016 @ 17:00 UTC!
Bernard Turcotte Staff Support:Hi all
Becky Burr:hi, did you get the deck Brenda?
Avri Doria:it is good to synch while talking and then allow scroll.
Avri Doria:i am one of those who gets lost if i scroll while presentation is happeing.
Avri Doria:and since you sent it, i can have both a scollable version and a synched version.
Becky Burr:hello folks, we will just wait a few minutes for people to gather.
Becky Burr:Could 310xxx5800 and 703xxx4154 identify themselves?
David McAuley:Hello all
David McAuley:hello Holly
Holly J. Gregory (Sidley):Hi David, Hi Everyone! Becky, Id like to explain the materials if there is a moment.
David McAuley:woops 4154 is me
Holly J. Gregory (Sidley):Fran Faircloth is an associate with Sidley
David McAuley:it looks good here
Bernard Turcotte Staff Support:Standard issue for some systems
Bernard Turcotte Staff Support:slide your mouse over it and it should show
Bernard Turcotte Staff Support:Holly hand up
Bernard Turcotte Staff Support:all can you please mute if you are not talking
David McAuley:Thanks Holly - good stuff
David McAuley:It would be helpful Holly, IMO
Holly J. Gregory (Sidley):+1 Amy. We will take you up on it!
David McAuley:Good point Amy
Holly J. Gregory (Sidley):for example, clerk might determine that a filing requirement has not been met
David McAuley:exactly Holly
Bernard Turcotte Staff Support:David hand up
Bernard Turcotte Staff Support:Please identify yourself when you speak
Holly J. Gregory (Sidley):Also need to consider whether if there is a public rating/ranking some highly qualified candidates may be discouraged from applying.
David McAuley:happy to be voluntold
David McAuley:This ICANN context training is so important - need to do this somehow, not sure how
Holly J. Gregory (Sidley):Template for orientation /training of panelists based on other "on-boarding" of CEO/Board/ new employees is a good idea
Amy Stathos:We do have some training materials that are public. We can try to help gather those and send information to the group
David McAuley:+1 Holly and Becky
Amy Stathos:Then the group can look to see if there are any gaps in the information that might benefit standing panle members
David McAuley:Maybe have two steps in conflicts disclosures – first when appointed to stnd panel and next when assigned to any one case more tailored to that case and parties
Holly J. Gregory (Sidley):+1 David
Holly J. Gregory (Sidley):This issue was taken back to CCWG in the bylaw drafting process and it was agreed to leave for implementation
David McAuley:Thanks Holly -
Amy Stathos:There is also the International Bar Association Guidelines on Conflicts of Interest in International Arbitration
Avri Doria:Would not be only corproate entities, would it?
Avri Doria:and it does need a degree of accessiblity. but not the napkin level of accessiblity.
David McAuley:no - can be individuals etc
Avri Doria:right but can be part of ICANN
Avri Doria:or rather and can be a subunit of ICANN.
Olga Cavalli:Hi apologies for being late!
Marianne Georgelin - Afnic:sorry for being late too.
Tijani BEN JEMAA:Hi Olga
Olga Cavalli:hi Tijani
Bernard Turcotte Staff Support:Review of CEP is now in WS2 for the CCWG
Amy Stathos:In terms of Emergency Panelist - note that the new Bylaws current state that: "A single member of the Standing Panel (“Emergency Panelist”) shall be selected to adjudicate requests for interim relief."
Brenda Brewer 2:Please idientify your name if your phone number is listed under Participants. Thank you!!
Becky Burr:right Bernie - so it seems to me we should not focus on CEP in this group. Mediation is the out here, and any WS2 CEP improvements can easily be folded into this process when developed
Holly J. Gregory (Sidley):We can dig out the "map" from our LA discussion
Bernard Turcotte Staff Support:Note we have passed the halfway mark in the call
Bernard Turcotte Staff Support:40 minutes to go.
David McAuley:I don't think we did keep those limits but deferred to this group
Holly J. Gregory (Sidley):Agreed Becky. That is part of the purpose of outlining the current process/rules.
Holly J. Gregory (Sidley):will work with Amy to get that done, Becky
Amy Stathos:Hi All - As this meeting was added to the calendar just yesterday, I have a competing meeting that starts at 11:00 a.m. PDT so I have to drop off in the next few minutes.
David McAuley:Anything that can sharpen issues and/or shorten (fairly) the process is good, IMO
Marianne Georgelin:I agree with David
David McAuley:Agree Becky and thanks Amy
David McAuley:The results of expert panel decisions can come up at IRP and in these case multi-parties are foreseeable
Robin Gross:I like the idea of allowing amici briefs.
David McAuley:I like them if panel agrees
David McAuley:I think that is right Becky
David McAuley:Bylaw 4.3(k)(ii)
Bernard Turcotte Staff Support:Jurisdiction is a WS2 topic also
Holly J. Gregory (Sidley):That is a different type of jurisdiction issue
Holly J. Gregory (Sidley):So long as ICANN is formed under the laws of California, the law of California governs how the articles and bylaws are interpreted.
David McAuley:Currency is not applicable is it
Holly J. Gregory (Sidley):this is for fee shifting
David McAuley:Agreed - the decisions will be binary in asense - yes or no on violation of mission
David McAuley:ok - good point Holly
David McAuley:We might ask the IRP provider how they handle fee currencies
Holly J. Gregory (Sidley):We drafted the question poorly re currency
Bernard Turcotte Staff Support:12 minutes left in call
Holly J. Gregory (Sidley):and re hearings -- do not mean to presume that hearings will take place
David McAuley:Good question but fundamentally shouldn't a claimant be able to represent self if they want
Holly J. Gregory (Sidley):Agree David -- but are counsel also allowed and if so must they be lawyers?
David McAuley:these are good q's Holly that we need to think through
Bernard Turcotte Staff Support:Ed question
Bernard Turcotte Staff Support:5 minutes - should we wrap up with closing comments and requests
David McAuley:we also need a rule to effect that differences between rules and bylaws will be decided by application of bylaw
Holly J. Gregory (Sidley):Yes. Bylaw is higher authority than rule -- but we should work hard to avoid any inconsistency
David McAuley:souns good to me Becky
Marianne Georgelin:are we planning to meet in Helsinki?
David McAuley:souns is a new verb
Holly J. Gregory (Sidley):I like the two week time period to help us get materials/information ready
Holly J. Gregory (Sidley):Just a note that Sidley has not been invited to Helsinki. If there is to be a discussion there we believe we should be there to participate in person.
David McAuley:Thanks Becky and Bernie and Holly and all
Avri Doria:bye
Robin Gross:Thanks, Becky and all, bye!
Becky Burr:bye
Bernard Turcotte Staff Support:bye all;