[IOT] Translation Expense Handling

Mike Silber silber.mike at gmail.com
Tue Mar 31 14:41:13 UTC 2020


Susan

Point noted. Possibly a different formulation, with the focus being on an application to the panel who will make the decision: If there is no commercial advantage that may accrue to the claimant, then it may approach the panel, on good cause shown, to request that ICANN makes an appropriate contribution to the reasonable costs of translation required to pursue its claim. However, if a claimant  will receive a commercial advantage from the dispute being decided in its favour, then there is a presumption that the claimant must pay for its own translation unless there are exceptional grounds to deviate from that approach and the claimant may may approach the panel with a request to determine that exceptional grounds exist to deviate from this approach and that ICANN makes an appropriate contribution to the reasonable costs of translation required to pursue its claim. 

Better? 

> On 31 Mar 2020, at 16:23, Susan Payne <susan.payne at valideus.com> wrote:
> 
> Thanks everyone for the good discussion – looking forward to speaking later.
>  
> A reminder that the Bylaws provide for “translation services for claimants if needed”.  A non-commercial entity claimant would certainly seem to have the potential to give rise to such a need, but do we consider this would be the only type of claimant who would qualify?  Not all commercial entities engaging with ICANN are large and well-funded, many are relatively modest.
>  
> Susan Payne
> Head of Legal Policy 
> Valideus 
> M: +44 (0) 7971 661175
> E: susan.payne at valideus.com <mailto:susan.payne at valideus.com>
>  
>  
>  
> From: IOT <iot-bounces at icann.org> On Behalf Of Chris Disspain
> Sent: 31 March 2020 15:12
> To: Becky Burr <becky.burr at board.icann.org>
> Cc: iot at icann.org
> Subject: Re: [IOT] Translation Expense Handling
>  
> And for me also. 
>  
> 
> Cheers,
>  
> CD
> 
> 
> On 31 Mar 2020, at 15:08, Becky Burr <BBurr at hwglaw.com <mailto:BBurr at hwglaw.com>> wrote:
>  
> Works for me
> 
> From: IOT <iot-bounces at icann.org <mailto:iot-bounces at icann.org>> on behalf of Mike Silber <silber.mike at gmail.com <mailto:silber.mike at gmail.com>>
> Date: Tuesday, March 31, 2020 at 8:26 AM
> To: Becky Burr <becky.burr at board.icann.org <mailto:becky.burr at board.icann.org>>
> Cc: "iot at icann.org <mailto:iot at icann.org>" <iot at icann.org <mailto:iot at icann.org>>
> Subject: Re: [IOT] Translation Expense Handling
> 
> Hi Becky
> 
> 
> I agree with the suggestion of providing translation services in the context of a live hearing.
> 
> I think the initial claim must be in English. There are enough English speaking lawyers around the world, that they can prepare an initial claim.
> 
> I also think that parties may require translation of further documents. Given that complainants may be a mix of commercial and non-commercial parties, I would suggest we allow the panel the flexibility (on good cause shown) to consider a request and to determine that ICANN make a contribution towards  the reasonable translation costs of non-commercial parties.
> 
> Regards
> 
> Mike
> 
> 
> 
> On 30 Mar 2020, at 21:34, Becky Burr <becky.burr at board.icann.org <mailto:becky.burr at board.icann.org><mailto:becky.burr at board.icann.org <mailto:becky.burr at board.icann.org>>> wrote:
> 
> FWIW, and understanding that this will be extremely controversial, I think that the translation issue is extremely complicated and there is a great risk that we will get this wrong without a more thorough study.  My approach would be to start by providing translation services in the context of a live hearing, but not otherwise, and undertaking a survey of how translation issues are handled in similar contexts.  The IRP IOT is an ongoing body, and there is nothing that would prevent the group from revisiting the issue once we have more information and/or more relevant experience.
> 
> On Sat, Mar 28, 2020 at 2:34 AM Kurt Pritz <kurt at kjpritz.com <mailto:kurt at kjpritz.com><mailto:kurt at kjpritz.com <mailto:kurt at kjpritz.com>>> wrote:
> 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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> Cheers,
>  
> CD
>  
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