ICANN’s proposed IRP clocks can start from different events

Summary

The operative 2018 Interim Supplementary Procedures give a claimant 120 days after awareness of material effect to file an IRP, but impose a 12-month outside limit from the challenged ICANN action or inaction.
The IRP-IOT’s 2024 proposal would make the ordinary trigger more precise: 120 days after a claimant knew, or reasonably should have known, that it was materially affected. It would extend the ordinary outside limit to 24 months and add an absolute four-year boundary.
The two clocks start from different events. A policy can be adopted before it is implemented, and a person may not qualify as a claimant until direct and causally connected injury exists. The proposed outside period can therefore advance before the ordinary claimant period begins.
Rule 4D is a real safety valve, but not an automatic extension. A late applicant must show exceptional circumstances outside its control by clear and convincing evidence, submit the proposed dispute and act within a separate 30-day period.
The strongest defense of repose is predictability: ICANN, contracting parties and the wider community should not face indefinite challenges. ALAC supports that balance; LINX and NCSG argue that the proposed boundary remains too restrictive or starts from the wrong event.
ICANN should publish a dual-clock notice record joining the institutional action, implementation stages, notice, claimed material effect, the 120-day and 24-month states, RFR and CEP status, the Rule 4D path and the four-year closure boundary. The record would preserve evidence; an IRP Panel would still decide standing and timeliness.

One file, four times

A filing deadline looks like a line on a calendar. Proposed Rule 4 is closer to four clocks attached to the same dispute.

The first clock begins when ICANN acts or fails to act. Under the 2024 draft, that institutional event starts a 24-month period of repose. It also starts an absolute four-year boundary that no late-filing request may cross.

The second begins when a person becomes aware, or reasonably should become aware, of being materially affected by the action or inaction. That event starts the ordinary 120 days. It is not merely awareness that ICANN made a decision. The proposed wording deliberately follows the Bylaws’ claimant definition: material effect requires injury or harm directly and causally connected to the alleged violation.

The third appears when the same person first uses a Request for Reconsideration. Proposed Rule 4C can preserve at least 30 days after publication of the final RFR disposition or a summary dismissal, provided the claimant entered the RFR while still within Rule 4B’s timeframes. The IRP-IOT considered tolling and instead chose fixed additional time. It has not yet extended the same treatment to the Cooperative Engagement Process.

The fourth applies only after the ordinary boundary has been missed. Rule 4D would let a claimant ask a single panelist for permission to file after 24 months, but only within four years. The application must carry the proposed dispute and clear and convincing evidence that exceptional circumstances outside the claimant’s control prevented awareness, eligibility or filing. It must then be made within 30 calendar days after the claimant becomes aware of being materially affected or becomes able to file.

Each provision can be read alone. The governance problem appears when they are placed on one timeline.

The current rule already contains the mismatch

The 2024 proposal is not the operative rule. ICANN’s 2018 Interim Supplementary Procedures still provide the published baseline. Their Rule 4 requires filing no more than 120 days after a claimant becomes aware of the material effect of the challenged action or inaction, and no more than 12 months after the action or inaction itself.

The 2024 draft would improve that architecture in several ways. It separates action from inaction. It replaces awareness of a “material effect” in the abstract with awareness of being materially affected, which is closer to the Bylaws’ standing requirement. It doubles the ordinary outside period from 12 to 24 months. It creates an RFR pathway and an exceptional-circumstances pathway, then publishes an absolute four-year maximum.

Those are material changes. They make more claims potentially reachable and make the exception structure visible. They do not remove the basic mismatch. The ordinary period begins from the claimant’s condition; the outside period begins from the institution’s event.

That distinction was not hidden by the IRP-IOT. Its introduction says earlier consultations produced substantial opposition to the 12-month repose, good but non-unanimous support for no repose, and support from some respondents for a longer outside period. The redline describes 24 months as a compromise between those who oppose an outer limit and those who believe decisions cannot remain indefinitely challengeable. Some members did not support the Rule 4 consensus but supported putting it to public comment.

This is therefore not a drafting accident that can be exposed by finding one overlooked sentence. It is a conscious allocation of uncertainty.

A claimant can arrive after the institutional event

LINX supplied the clearest criticism in the 2024 consultation. An ICANN decision may be made on one date and implemented later. The implementation may reach different actors at different times. If material effect occurs more than 24 months after the original action, the outside clock may already have expired before the eventual claimant satisfies the Bylaws’ eligibility test.

The word “claimant” needs care here. Before direct injury exists, the person is a potential claimant, not necessarily a claimant entitled to file. The title of this Article uses “claimants” for those eventual parties; it does not erase standing.

Delayed effect is not exotic in institutional systems. A Board resolution can require implementation work. A contractual change can take effect at renewal. A policy can wait for an operational readiness date. A programme can be announced, phased and only later applied to a particular actor. Inaction can also become injurious gradually, as a missed decision or uncorrected process begins to constrain an identifiable party.

None of these examples proves that a particular IRP should be accepted. They demonstrate why action time, implementation time and material-effect time are not synonyms.

Rule 4D itself confirms that the categories can separate. It expressly contemplates exceptional circumstances that prevented a person from becoming aware of the action or from being eligible as a claimant during the ordinary period. That is a valuable admission. It means the proposal does not pretend every injury is visible on the decision date.

But an admission inside an exception is not the same as an observable process. The later claimant must identify the correct act, reconstruct implementation, prove circumstances outside its control, establish standing and meet the clear-and-convincing standard—while also filing within the exception’s own 30-day window. By then, the dates may be distributed across Board records, staff communications, contracts, public webpages and the claimant’s internal evidence.

Finality is not a pretext

The strongest response is that institutions cannot hold every decision open forever. That response has force.

ICANN decisions can shape contracts, evaluation work, budgets, application plans and third-party reliance. A counterparty may invest because a programme appears settled. Staff must allocate resources. The community needs to know when an old controversy has become a closed state rather than a dormant threat. If every later effect restarted review for every new party without limit, one institutional act could remain challengeable for decades.

The IRP-IOT’s rationale uses the language of certainty and foreseeability. ALAC supports the 24-month limit as a compromise that prevents indefinite challenge while giving claimants a fair opportunity, backed by Rules 4C and 4D. The proposed four-year boundary makes that preference explicit even when exceptional circumstances exist.

This Article does not answer finality with a perpetual discovery rule. It does not propose that every downstream economic consequence creates a fresh IRP. It does not say the Bylaws legally prohibit repose; ICANN Legal has publicly taken the opposite view, and the consultation contains disagreement rather than a final judicial answer.

The sharper question is whether finality is observable and earned. A clock can close a path only if the system can show what started it, what the affected party could reasonably know, what notice was given, which exceptions were available and why closure occurred. Otherwise, “certainty” describes the institution’s state while uncertainty is exported to the party asked to prove it arrived too late for reasons beyond its control.

Rule 4D is relief with its own clock

It would be inaccurate to write as though 24 months ended every path. Proposed Rule 4D is designed for precisely the hard case.

One route covers exceptional circumstances outside the claimant’s control that prevented awareness of the challenged action or eligibility under the Bylaws. Another covers circumstances that prevented the claimant from being able to file within 24 months. A single panelist would consider the request with reference to the purposes of the IRP and relevant prior decisions. ICANN would have a right to respond.

This structure preserves adjudicative judgment. It discourages a claimant from treating ordinary delay as an exception, and it protects ICANN from an unsupported assertion made years after the event. The clear-and-convincing standard is the price of crossing the ordinary boundary.

It also creates a compressed procedural burden. The claimant must present the late-filing explanation, standing explanation and proposed statement of dispute within 30 calendar days of awareness or regained ability. A person who first learns that the outside clock has expired must therefore investigate the institutional event, establish causation, assemble an IRP claim and prove the exception at the same time.

ALAC supports the safety valve but asks for a clearer definition of “limited circumstances.” NCSG would extend the ordinary outside period to 36 months and retain exceptions. Their positions differ, yet both reveal the same design need: parties should be able to tell which path is open and what evidence belongs to it before a panel has to reconstruct the entire history.

Rule 4C exposes the notice problem

The Request for Reconsideration provisions reveal another clock choice. Rule 4C measures its fixed additional time from publication of the Board’s approved resolution on the RFR disposition, or publication of a summary dismissal by the Board Accountability Mechanisms Committee.

The rationale says publication was chosen because it is information available to all. It also records that some IRP-IOT members favored direct notification to the party rather than obliging that party to monitor the ICANN website. A public submission by Nikesh B Simmandree likewise supported notification.

Publication and notice serve different audiences. Publication creates a common public reference. Direct notice creates evidence that the affected participant received, or was given a defined route to receive, a consequential event. A robust control should preserve both timestamps rather than forcing the rule to pretend they are interchangeable.

The difference matters most when a deadline is short. A 30-day period is not merely a document state; it is a duty imposed on a named party. If publication is the legal trigger, the record should state that plainly, expose a stable feed and preserve the exact publication time. If direct notice is also sent, its channel, recipient and delivery state should be preserved. A later panel can decide the legal consequence. The record should not make that evidence disappear.

CEP creates a related gap. The IRP-IOT says fixed additional time for Cooperative Engagement will be considered when the CEP rules are reviewed. ALAC specifically asked for procedural alignment. Until that is resolved, a claimant should not infer that good-faith engagement pauses anything. A notice record should say “no timing effect established” rather than leave silence to be mistaken for protection.

Build a dual-clock notice record

ICANN should join these states in one maintained public record for each action or inaction likely to produce reviewable effects. It need not predict every claimant. It must preserve the institutional half of the evidence and provide a place for contested claimant-side assertions.

The record should contain:

an identifier for the action or inaction, the deciding authority, the authoritative timestamp and the controlling source;
implementation milestones, effective dates and the classes expected to encounter the decision;
public notices and direct notices, with channels, recipients and delivery or publication evidence;
the proposed 24-month clock’s start, current state and scheduled end;
material-effect and awareness assertions, naming who made each assertion and the evidence supplied;
the ordinary 120-day clock when its trigger can be established, while preserving “contested” or “unknown” when it cannot;
any related RFR filing, final disposition, publication and direct-notification timestamps;
any CEP state and an explicit statement of its timing effect under the applicable rule;
the Rule 4D basis invoked, the clear-and-convincing burden, its 30-day sub-clock and the panelist’s disposition;
the four-year absolute boundary;
corrections and superseding actions; and
a closure reason: ordinary expiry, exception denied, timeliness adjudicated, settlement, withdrawal or merits resolution.

The design must distinguish fact from assertion. ICANN can authoritatively record when its Board acted and when it published implementation material. It usually cannot know when an external party first became aware or when injury became direct. The claimant can assert those dates and supply evidence; ICANN can contest them; the panel decides.

That is why the object is a notice record, not an administrative verdict. It reduces evidentiary decay without moving adjudication to staff. It also serves finality. Third parties can see whether the ordinary boundary passed, whether an exception request remains open and why the file finally closed.

Participation is evidence, not authority

The consultation attracted nine submissions. They include support, qualified support and opposition. That range matters because it surfaces the competing losses: inaccessible review, indefinite challenge, procedural complexity, notice failure and uncertainty for relying parties.

It does not turn nine submissions into a referendum. Heng Lu’s critique of the multi-stakeholder model is useful at exactly this boundary. Participation can provide expertise, warning and objection. It does not by itself confer the authority to adopt a rule, decide a claim or bear another party’s loss.

The IRP-IOT drafts. The Board eventually decides whether to adopt updated procedures under the Bylaws framework. ICANN records its own actions. A claimant alleges injury and files. The ICDR administers, and an IRP Panel decides standing, timeliness and any Rule 4D request. Affected third parties may rely on closure. Each role should remain visible.

The same discipline applies to this Article’s proposal. A dual-clock record cannot amend the Bylaws through metadata. It cannot promise that a late claim will be heard. It cannot convert a public comment into legal authority. Its value is narrower: every role reaches the decision with the same dated institutional record and less room for missing evidence to become power.

What the record currently proves

As of the cutoff, the 2018 interim rule is the published operative baseline examined here. The 2024 text is a proposal. The public consultation closed on 16 September 2024 with nine submissions. The current ICANN public-comment index lists the summary report as pending with a report-due date of 1 September 2026, while the older proceeding page still displays 1 June 2026.

That date difference is a status fact, not evidence of motive. It does not prove that the proposed language will survive, that the Board will adopt it, or that transition rules will take a particular form.

Transition matters because the 2018 Board record contains a specific commitment: if updated procedures expand the filing time, transition language should give potential claimants the benefit of that additional time so they are not prejudiced. A final package should show how that promise applies to the move from 12 to 24 months, to Rule 4D and to claims whose institutional act, material effect and awareness fall on different sides of adoption.

The summary report, final IRP-IOT text, Board rationale and any adopted transition clause are therefore the next evidence events. Until they exist, a responsible analysis ends with a design question, not a prediction.

ICANN can preserve finality and improve access at the same time if it stops treating time as one number. The action clock belongs to the institution. The awareness clock belongs to the dispute. The exception clock belongs to a panel. The absolute boundary belongs to the rule. Put all four on the same record, and closure becomes reviewable rather than rhetorical.

ICANN’s IRP Proposal Can Start the Outer Clock Before Claimants Are Affected

Summary

One file, four times

The current rule already contains the mismatch

A claimant can arrive after the institutional event

Finality is not a pretext

Rule 4D is relief with its own clock

Rule 4C exposes the notice problem

Build a dual-clock notice record

Participation is evidence, not authority

What the record currently proves

Sources

Deeper Profile Context

Strategic Circle

Leadership Alliance

Strategic Circle Briefing

Leadership Alliance Briefing