[IOT] Translation Expense Handling

Mike Rodenbaugh mike at rodenbaugh.com
Tue Mar 31 17:11:43 UTC 2020


Not to my knowledge.  We should ask ICDR or Jones Day as they have been in
every hearing.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
http://rodenbaugh.com

On Tue, Mar 31, 2020, 9:10 AM Scott Austin <saustin at vlplawgroup.com> wrote:

> Becky and Mike:
>
> I agree with Mike’s point on initial pleadings in English and BYOT for
> hearings with reimbursement for good cause shown to the Panel for
> reasonable costs of translation of documents to non-commercial non-English
> speaking parties.
>
>
>
> Have we had any hearings with multiple claimants speaking different
> non-English languages?
>
>
>
> Best regards,
>
> Scott
>
>
>
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> Group LLP
>
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>
> *From:* IOT <iot-bounces at icann.org> *On Behalf Of * Becky Burr
> *Sent:* Tuesday, March 31, 2020 10:08 AM
> *To:* Mike Silber <silber.mike at gmail.com>; Becky Burr <
> becky.burr at board.icann.org>
> *Cc:* iot at icann.org
> *Subject:* Re: [IOT] Translation Expense Handling
>
>
>
> Works for me
>
> From: IOT <iot-bounces at icann.org> on behalf of Mike Silber <
> silber.mike at gmail.com>
> Date: Tuesday, March 31, 2020 at 8:26 AM
> To: Becky Burr <becky.burr at board.icann.org>
> Cc: "iot at icann.org" <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>> 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>> 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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