[IOT] status on in-person hearing discussion following today's call

[Burr, Becky]

In the hopes of narrowing and resolving differences, I've attempted to summarize the state of our discussion on the standard for in-person hearings.
ICANN offered the following standard with respect to in-person hearings:
The IRP PANEL should conduct its proceedings with the presumption that in-person hearings shall not be permitted.  The presumption against in-person hearings may be rebutted only under extraordinary circumstances, which are limited to circumstances where, upon motion by a Party, the IRP PANEL determines that the party seeking an in-person hearing has demonstrated, with clear and convincing evidence, that: (1) an in-person hearing is necessary for a fair resolution of the claim; (2) an in-person hearing is necessary to further the PURPOSES OF THE IRP; and (3) considerations of fairness and furtherance of the PURPOSES OF THE IRP outweigh the time and financial expense of an in-person hearing.  In no circumstances shall in-person hearings be permitted for the purpose of introducing new arguments or evidence that could have been previously presented, but were not previously presented, to the IRP PANEL.
All participants appear to agree that in-person hearings should be the exception to the rule, and the group appears to be comfortable with ICANN's proposal to create a rebuttable presumption against such hearings, subject to an exception for "extraordinary" circumstances.  Most participants are generally comfortable with using the 3 part test (necessary for fair resolution, necessary to further the purpose of the IRP, where those considerations outweigh time and expense) to define the "extraordinary circumstances" category.    In contrast, Amy articulated a slightly different standard permitting in-person hearings only where (a) the circumstances are extraordinary (which requires a definition) AND (b) requirements (1) - (3) are met. Finally, everyone seemed very comfortable that you can't use in-person hearings to introduce new evidence, etc. Participants are not comfortable injecting the US-centric "clear and convincing evidence" standard (and debates about what that means, etc), into the process.

1.       Most participants appeared to support the following revisions to the ICANN draft proposed by David McAuley:
The IRP PANEL should conduct its proceedings with the presumption that in-person hearings shall not be permitted.  The presumption against in-person hearings may be rebutted only under extraordinary circumstances, which are limited to circumstances where, upon motion by a Party, the IRP PANEL determines that the party seeking an in-person hearing has clearly demonstrated, with clear and convincing evidence, that: (1) an in-person hearing is necessary for a fair resolution of the claim; (2) an in-person hearing is necessary to further the PURPOSES OF THE IRP; and (3) considerations of fairness and furtherance of the PURPOSES OF THE IRP outweigh the time and financial expense of an in-person hearing.  In no circumstances shall in-person hearings be permitted for the purpose of introducing new arguments or evidence that could have been previously presented, but were not previously presented, to the IRP PANEL. [For those who have not been following this closely, the "PURPOSE OF THE IRP" is to hear and resolve disputes specified in the ICANN Bylaws.]

2.       Kavouss would prefer a Panel finding that the moving Party "convincingly" demonstrated the requirements in (1) - (3).  Also, Kavouss prefers not to use the word "circumstances."

3.       ICANN (Sam and Amy) appear to be uncomfortable with both (1) and (2) above.
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