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

[Greg Shatan]

Now I'm even more sorry I missed the call, but I had to be in transit to
get to my office in time for the CWG-IANA call.

Are we trying to convey a particular level of proof, and if so, what level?

Does "clearly demonstrated" mean anything in particular to us? Does it mean
something in particular to the parties or to the panel in a case, or will
they be dealing with an unknown and undefined concept?

If we are going to establish a standard, and it's a brand new standard,
we're going to need to define it.  Any short phrase that doesn't have a
settled meaning is asking for trouble.  Participants will be grasping for
something, and if we don't provide it, they will each go their own way,
based on their own experiences.

"Clear and convincing" has the advantage of being a known standard.  I
understand that some may resist terminology that is tied to any known body
of jurisprudence, but if we go that route, we're going to need more detail.

I think we need to step back and ask two questions:

*What are we trying to say?*

*How do we say it?*

In considering the second question, we also need to ask "Is there an
existing way to say it?"

Greg

On Thu, Aug 11, 2016 at 4:18 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

> Thanks Greg.  Although ICANN is comfortable with the “clear and
> convincing” standard, the sentiment on the call this morning was opposed.
> So here are our choices:
>
>
>
> ICANN:  “demonstrated, with clear and convincing evidence”
>
> McAuley proposal: “clearly demonstrated”
>
> Aresteh proposal: “demonstrated, with convincing evidence”
>
>
>
> Can’t tell from your note whether the McAuley language (clearly
> demonstrate) gives you the same half pregnant heartburn
>
>
>
> *From:* Greg Shatan [mailto:gregshatanipc at gmail.com]
> *Sent:* Thursday, August 11, 2016 4:04 PM
> *To:* Burr, Becky <Becky.Burr at neustar.biz>
> *Cc:* Kavouss Arasteh <kavouss.arasteh at gmail.com>; iot at icann.org
>
> *Subject:* Re: [IOT] status on in-person hearing discussion following
> today's call
>
>
>
> Becky, ]
>
>
>
> True, and yet it doesn't invoke that standard particularly well -- the
> "clear and convincing" standard of proof (if not evidence, per se) is well
> understood in US jurisprudence.  But "convincing evidence" alludes to that
> standard without actually invoking it.  It leaves an ambiguity.  We should
> either use the term "clear and convincing" or use neither term, so it's
> clear that we are not seeking to bring that standard to bear.
>
>
>
> I will note that the PDDRP explicitly and expressly uses the "clear and
> convincing" standard for its arbitral decisions.  And says so, in so many
> words.
>
>
>
> We should either commit or move away -- we can't be "half-pregnant."
>
>
>
> Greg
>
>
>
> On Thu, Aug 11, 2016 at 3:19 PM, Burr, Becky <Becky.Burr at neustar.biz>
> wrote:
>
> I have noted your preference on this Kavouss.  I am ok with “has
> demonstrated” as opposed to “has clearly demonstrated,” but I do not
> support the addition of “with convincing evidence.”  I think the Party
> should be required to demonstrate to the satisfaction of the Panel that the
> 3 criteria are met.  But “convincing evidence” invokes a very specific US
> judicial evidentiary standard for establishing the burden of proof.
>
>
>
>
>
> *From:* Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com]
> *Sent:* Thursday, August 11, 2016 3:04 PM
> *To:* Burr, Becky <Becky.Burr at neustar.biz>
> *Cc:* iot at icann.org
> *Subject:* Re: [IOT] status on in-person hearing discussion following
> today's call
>
>
>
> Beckie
>
> Pls take the ICANN language and delete " Clearly" as follows
>
>
>  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  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.
>
>
>
> 2016-08-11 19:13 GMT+02:00 Burr, Becky <Becky.Burr at neustar.biz>:
>
> 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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