[IOT] Translation Expense Handling

[Kurt Pritz]

Hi Susan and Everyone: 

Here are my views on handling of translation expenses. I understand this is overly formulaic or specific beyond our needs but it might be of assistance in thinking through the creation of policy or rules for this issue. 

Principles:

1) If one party makes the rules (ICANN), then those rules should construed in favor of the other party. (This has parallels in contract law.)

2) As a corollary: if one party decides the language of the proceedings (ICANN), that party should make reasonable accommodation for the other party, including bearing reasonable costs for translation. 

3) “Reasonableness” should be carefully defined to provide an appropriate balance between accommodation, meeting the needs of the procedure, and avoiding abuse or unnecessary cost or procedure. 

4) No party should be disadvantage by language. 

With that in mind, our rules could provide that:

1) Understanding that the official language of the proceedings are in English, ICANN will pay for translation into English. 

a) This includes the initial claim / pleadings. 

b) This applies to all languages (not only the UN languages).

2) In order to ensure cost predictability and prevent translation costs being used to dis-advantage one party: 

a) The translations will be done by ICANN retained translators. 

b) Understanding that evidentiary documents can be voluminous and also be of marginal relevance, they all need not be translated. The panel might decide that an issue is already conceded, that specific evidence is duplicative, or that the evidence is not relevant to the germane issues. The panel can make these decisions based upon the pleadings and arguments that refer to the evidence proffered. In these cases the panel can decide that the evidence need not be translated. When making this decision, the panel can indicate to both parties why the translation is not required. (Therefore in practice, the decision to not translate evidentiary documents will  be a positive indication for the non-English-speaking party.)

3) In order to ensure that a non-English speaking party is not dis-advantaged and that translations are objectively performed: 

a) The ICANN-retained translators will be retained and managed by some type of double-blind process so the translators and their representatives will never speak with ICANN staff. In addition, ICANN legal staff will not be part of the engagement process.    

b) The non-English-speaking party (i.e., not ICANN) can retain their own translators to provide the pleadings and evidence in English but will bear the expense for that effort. That is, the party can provide the pleadings in English of they desire. 

4) Similar to the above, ICANN will pay for translations of its own pleadings and arguments into the language of the complainant, only if the complaining party used the ICANN-furnished translator to translate its documents and the complaining party requests the translation. 

5) Similar to the above  ICANN will pay for translation of evidentiary documents in line with item (2b) above, only if the complaining party used the ICANN-furnished translator to translate its documents and the complaining party requests the translation

6) Similar to the above, ICANN will pay for translation of the panel decisions and questions to the parties, only if the complainant used the ICANN translator to translate its documents and the complaining party requests the translation. 

7) In summary, the complaining party will decide at the outset whether to bear any translation costs or to use ICANN translators throughout. However, there should be some mechanism for the complaining party to “change its mind,” given an appropriate set of circumstances.

I am sure there are lots of holes in this but I hope it is helpful to think through and discuss the last set of translation issues. 

I am happy to answer questions or join in our next discussion about this (or ignore it if it is not useful). 

Best regards,

Kurt

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