[IOT] Types of Hearings

[McAuley, David]

Dear members of the IRP IOT:



On today's conference call (19:00 UTC), I will lead the discussion on agenda item #3, Types of Hearings.



On the one-hand we have Updated Supplementary Procedure #5 in our original draft<https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf> that went out to public comment.



And on the other we have Malcolm's strawman as proposed in his Jan. 3 email<https://mm.icann.org/pipermail/iot/2018-January/000350.html>.



I have tried to distill the principles underlying the conduct of IRP in our original draft and summarize them here:



*       Expeditiousness.
*       Reasonably low cost.
*       Ensure fundamental fairness.
*       Ensure due process consistent with purposes of IRP.

   *    Note - the purposes of IRP are listed in Bylaw 4.3(a)(i) to (ix) and are reproduced at bottom of this note.

*       Panel to consider: accessibility, fairness, efficiency (both as to time and cost) in its conduct of IRP.
*       E-means to extent feasible.
*       Where necessary, live telephonic or video conferences.
*       Presumption that in-person hearings not permitted - rebuttable only under extraordinary circumstances where demonstration of all three of: (1) in-person hearing needed for fair resolution, (2) needed to further purposes of IRP, and (3) considerations of fairness and furtherance of such purposes outweigh time and financial expense. Not for introducing new argument or evidence that could have been presented.
*       Hearings limited to argument only unless request for witness testimony demonstrates all three of the same conditions as previous point.

I have also tried to distill the principles underlying the conduct of IRP in the strawman.



In many respects they mirror our draft. Here are highlights:



*       Cost minimization.
*       E-means to greatest extent feasible.
*       Presumption for resolving on paper and argument only without witness statements or testimony.
*       In-person hearings allowed (generally via videoconference) as exception in panel discretion under 8 listed conditions - note as well that panel can call for in-person hearing on own motion only if 'both principal parties' consent.



These are very close. Let's see if we cannot agree a resolution.



Best regards,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154



Purposes of the IRP (Bylaw 4.3(a):

.... The IRP is intended to hear and resolve Disputes for the following purposes ("Purposes of the IRP"):

(i) Ensure that ICANN does not exceed the scope of its Mission and otherwise complies with its Articles of Incorporation and Bylaws.

(ii) Empower the global Internet community and Claimants to enforce compliance with the Articles of Incorporation and Bylaws through meaningful, affordable and accessible expert review of Covered Actions (as defined in Section 4.3(b)(i)).

(iii) Ensure that ICANN is accountable to the global Internet community and Claimants.

(iv) Address claims that ICANN has failed to enforce its rights under the IANA Naming Function Contract (as defined in Section 16.3(a)).

(v) Provide a mechanism by which direct customers of the IANA naming functions may seek resolution of PTI (as defined in Section 16.1) service complaints that are not resolved through mediation.

(vi) Reduce Disputes by creating precedent to guide and inform the Board, Officers (as defined in Section 15.1), Staff members, Supporting Organizations, Advisory Committees, and the global Internet community in connection with policy development and implementation.

(vii) Secure the accessible, transparent, efficient, consistent, coherent, and just resolution of Disputes.

(viii) Lead to binding, final resolutions consistent with international arbitration norms that are enforceable in any court with proper jurisdiction.

(ix) Provide a mechanism for the resolution of Disputes, as an alternative to legal action in the civil courts of the United States or other jurisdictions.



This Section 4.3 shall be construed, implemented, and administered in a manner consistent with these Purposes of the IRP.





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