[IOT] Information on Translations - identification of additional information needed

[Samantha Eisner]

Dear fellow IOT members,

With apologies for how soon this is before our call, I wanted to give some further information as to why ICANN did not include more detail on translations in the interim set of supplementary procedures, and proposed some items for your consideration.  Ultimately, I think that we either ask outside counsel to start working on this item and identify areas for IOT input, or the IOT focuses on a couple of questions in advance of getting this item to outside counsel.  Either way could work.

Here’s some info below (and half of it is a copy of David’s prior summary of this issue.

The IOT has engaged inconversations regarding the availability of translations as part of the proceedings.  The IOT’s conversations have previously been summarized by David in the report of public comments as:

The IRP-IOT requests that additional provisions be inserted into Section USP.5 addressing translation services.

With respect to such services, we first request a sentence reiterating ICANN Bylaw section 4.3(l): “All IRP proceedings shall be administered in English as the primary working language, with provision of translation services for Claimants if needed.”

As noted, translation services must be based on need, which shall not include cases where the claimant speaks/understands English even though claimant’s primary language is other than English. Put simply, these services would truly be a function of need, not convenience, factoring in the languages in which the requester has reasonable competency.

In addition, where a claimant speaks more than one language (but not English), and one of the languages that claimant speaks is an official UN language (Arabic, Chinese, English, French, Russian and Spanish), then that official UN language would be the translation service provided.

In addition, if the claimant includes more than one person (for instance claimant is a corporation), then if a responsible member of such persons (e.g. an officer of the company) speaks English that would suffice for using English in the IRP.

In addition, when considering the translation of documents, the IRP Panel or Emergency Panelist (see Bylaw 4.3(p)), as the case may be, shall endeavor to strike a fair balance between the materiality of the document versus the costs/delay to translate – all in the context of ICDR Article 18 on Translation, ICANN Bylaw 4.3(n) on ensuring fundamental fairness and due process, and ICANN Bylaw 4.3(s) on expeditious proceedings.

Implementation of these translation services provisions shall be up to the discretion of the IRP Panel or Emergency Panelist, as the case may be, in accordance with these provisions. In unusual cases where a hearing is held, these provisions shall be similarly applied to translations services in the form of interpretation services (with such costs being a factor to weigh as a financial expense of an in-person hearing, along with others, as to the appropriateness of holding a hearing).

In addition, the use of the term “claimant” in this translation services section includes others in the IRP who are joined as parties.

The were proposed as edits to the “Conduct of the Independent Review” Rule (5).

In drafting the proposed set of Interim Supplementary Procedures, ICANN noted that it did not include revisions regarding translation because this was an area where more precision in language is needed before we can include this concept in the supplementary procedures.

An item that could be important prior to giving direction to outside counsel is having a discussion is on responsibility and cost.  While the ICANN is bound to cover the administrative costs of the IRP, we should understand the whether the IOT’s recommendation is that translations, if granted, are to be considered part of that administrative cost.

Once ordered, is ICANN responsible for the provision of translations, or will it be a shared burden?  Particularly when the item is a translation of a legal document, it might not always be appropriate for ICANN to be in the position of providing a translation the claimant’s position for use by the Panel, and affirming the accuracy of a party’s translation could be part of a legal strategy and therefore (1) more appropriate for the drafting party to provide; and (2) part of legal costs.  If the IOT does not have all of the answers to these questions, we should build in some of these considerations into the supplementary procedures.  We also should address the requirement of translation of appendices, which do not have page limits and could greatly increase both cost and time for translation.

Further mention should also be made of the proficiency of the claimant’s representative in English, as part of the consideration of whether translations are appropriate for the IRP proceedings.  That is not mentioned in the language above, and seems to be an important factor.

With some further direction on these items, this issue is ready to go to outside counsel for drafting.  In the alternative, outside counsel could begin a drafting exercise and identify if there are additional areas where IOT guidance could be helpful.


—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631
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