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

[Burr, Becky]

I believe we have significant consensus on a goal to set a high bar for in-person hearings (rebuttable presumption of no in-person hearing), but to permit in-person hearing in “extraordinary circumstances,” which are found where: (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.

I think we all agree that in order to permit an in-person hearing the Panel must conclude that the Party asking for a hearing has demonstrated that those conditions are met.

Most participants are comfortable with allowing the Panelists to determine the standard of proof applicable to the requesting Party’s demonstration.

ICANN Legal would like the Panelists to apply a “clear and convincing evidence” standard in making that determination.  Kavouss is also apparently comfortable with that.




From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Thursday, August 11, 2016 4:34 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

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<mailto: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<mailto:gregshatanipc at gmail.com>]
Sent: Thursday, August 11, 2016 4:04 PM
To: Burr, Becky <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>>
Cc: Kavouss Arasteh <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>>; iot at icann.org<mailto: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<mailto: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<mailto:kavouss.arasteh at gmail.com>]
Sent: Thursday, August 11, 2016 3:04 PM
To: Burr, Becky <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>>
Cc: iot at icann.org<mailto: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<mailto: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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