<div dir="ltr"><div>Dear All,</div><div>DeAr David,</div><div>Ialso support the retention of the current text </div><div>I do not understand why at this stage and after Many hours of discussion some member of the group ,once again,come back to a text agreed by all of us.It is couter productive to reopen the case , I for one have also changes to make but refrais to do so. Others are also kindly requested to maintain the position taken when the current text was agreed</div><div>How many times we have to re-open a particular text.</div><div>One of our colleagues always comes back with a new idea .We all have new idea but we do not have new time to spend</div><div>Pls kindly let us finish this discussion as soon as possible thus retain the current text as it was agreed by full consensus.</div><div>As for X days, I have no problem with 15 calender days.</div><div>Regards</div><div>Kavouss</div><div> </div></div><div class="gmail_extra"><br><div class="gmail_quote">On Wed, Jan 3, 2018 at 5:00 PM, Malcolm Hutty <span dir="ltr"><<a href="mailto:malcolm@linx.net" target="_blank">malcolm@linx.net</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><span>On 02/01/2018 15:03, McAuley, David via IOT wrote:<br>
><br>
> There are five specific comments to consider. The five comments are from:<br>
><br>
> <br>
><br>
</span>> * DotMusic;<br>
> * The GNSO Business Constituency;<br>
> * The GNSO Noncommercial Stakeholder Group;<br>
> * The International Trademark Association; and<br>
> * Richard Hill.<br>
<span>><br>
> Their comments are included at bottom after my signature lines.<br>
<br>
</span>Happy New Year, everyone,<br>
<br>
It may be that the current Rule 5 should be left untouched, but I see<br>
little merit in Richard Hill's reasoning.<br>
<br>
The critique from BC and NCSC, that this rule is exceptionally<br>
restrictive, is well made. While it may be that most claims can be<br>
fairly assessed on paper without need for a hearing or witnesses, Rule 5<br>
erects a potent bar against a hearing, and imposes a heavy burden on a<br>
party wishing to call a witness. That's probably a good thing, but if<br>
there are no clear criteria for when you can overcome it, we risk either<br>
it never being overcome, or else the "exceptional" becoming the norm.<br>
Neither is a good outcome.<br>
<br>
I can see several other weaknesses in the current Rule 5:<br>
<br>
1) It conflates the issue of whether there should be an in-person<br>
hearing with the issue of whether witness testimony should be allowed.<br>
These are separate questions: witness testimony can also be in writing.<br>
<br>
2) As drafted, it gives primary consideration to cost and speed of<br>
resolution, and only secondary consideration to fairness and due<br>
process. I agree with BC that this has it back to front.<br>
<br>
3) It acts as a rule against hearings and witnesses per se, even though<br>
this is only justified in terms of cost. This precludes options for<br>
mitigating, rather than avoiding, such costs.<br>
<br>
<br>
I would like to hear from ICANN about the nature and scale of the costs<br>
that would be incurred if this rule were relaxed.<br>
- Are we just concerned about the cost of witnesses? It seems to me<br>
that since parties bear their own costs, this is a voluntary expense.<br>
<br>
- Is this mostly about increased panelist fees and expenses? That could<br>
be controlled in a more fine grained manner, eg. by limiting the number<br>
of days.<br>
<br>
- A procedure commonly used in ordinary courts is a timetabling order.<br>
We could require the panel to set out a timetabling order at the<br>
beginning, limiting both time for argument, time for witnesses and for<br>
cross- and rebuttal. This would give us more flexibility. While I think<br>
there is no mention of this in the Supplementary Rules beyond the brief<br>
aside in the final paragraph of Rule 5, hasn't this been practice in the<br>
past? If it is current practice, the Rules really ought to reflect that.<br>
<br>
4) The conditions for when a hearing can be held seem pretty opaque, as<br>
far as guidance to the Panel goes. It rather seems to go heavy on the<br>
emphasis of "we really don't want this, except when really exceptional",<br>
and light on any explanation of what we consider suitably exceptional.<br>
This isn't helpful to anyone, especially the Panel.<br>
<br>
5) Generally, it seems silent on a few things it should probably cover.<br>
For example, what if *both* ICANN and the Claimant want a hearing? What<br>
if they both want it, but an intervening party does not? The text is<br>
silent on these issues.<br>
<br>
Personally, I am sympathetic to the concerns raised by four of the five<br>
public comments, but I am also concerned not to open the door to one<br>
side simply outspending the other.<br>
<br>
If the group agrees, I would aspire to improve this text - not to make<br>
it easier to hold hearings (rather the opposite) but to make it more<br>
clear and more predictable, and give better guidance to the Panel.<br>
<br>
Recognising David's request for textual proposals, not just comment,<br>
please find attached a straw man.<br>
<br>
Kind Regards,<br>
<br>
Malcolm.<br>
<br>
> The draft supplementary procedure<br>
> <<a href="https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf" target="_blank" rel="noreferrer">https://www.icann.org/en/<wbr>system/files/files/draft-irp-<wbr>supp-procedures-31oct16-en.pdf</a><wbr>><br>
<span>> most involved is #5, Conduct of the Independent Review. It is quoted<br>
> below as well, after the comments – however the footnotes that appear<br>
> with #5 (footnotes 16 – 19) have not been included – you can see them<br>
> via the link in this paragraph.<br>
><br>
> <br>
><br>
> Some Bylaws considerations:<br>
><br>
> <br>
><br>
</span>> * Bylaw 4.3(a)(vii) says that one of the purposes of IRP is to secure<br>
<span>> the accessible, transparent, efficient, consistent, coherent, and<br>
> just resolution of Disputes.<br>
</span>> * Bylaw 4.3(n)(iv)(E) provides that the supplementary procedures are<br>
> intended to ensure fundamentalfairness and due process and shall at<br>
<span>> a minimum address [among other things] … whether hearings shall be<br>
> permitted, and if so what form and structure such hearings would take.<br>
</span>> * Bylaw 4.3(s) provides that anIRP Panel should complete an IRP<br>
<span>> proceeding expeditiously, issuing an early scheduling order and its<br>
> written decision no later than six months after the filing of the<br>
> Claim, except as otherwise permitted under the Rules of Procedure.<br>
><br>
> In my opinion as a participant, the comment from Richard Hill states the<br>
> best approach – supporting the rule as currently drafted. It appears to<br>
> me that the current draft of Rule #5 strikes the right balance among<br>
> presumptions and permitted flexibility while adhering to the idea that<br>
> IRP is to be expeditious. The lack of a hearing, except in exceptional<br>
> circumstances, does not mean that the IRP is unable to provide<br>
> accessible, transparent, efficient, consistent, coherent, and just<br>
> resolution of disputes as the purpose of the Bylaw requires.<br>
><br>
> <br>
><br>
> There is one other issue we should decide while on this rule. Rule 5<br>
> currently says, in part: “All evidence, including witness statements,<br>
</span>> must be submitted in writing *[X] days* in advance of any hearing.”<br>
<span>><br>
> <br>
><br>
> I suggest we insert 15 calendar days in this provision – that should<br>
> leave time for the panel to allow a rebuttal offer is it is so inclined.<br>
><br>
> <br>
><br>
> Best regards,<br>
><br>
> David<br>
><br>
</span>> */ /*<br>
<span>><br>
> David McAuley<br>
><br>
> Sr International Policy & Business Development Manager<br>
><br>
> Verisign Inc.<br>
><br>
> <a href="tel:703-948-4154" value="+17039484154">703-948-4154</a><br>
><br>
</span>> */ /*<br>
><br>
> */ /*<br>
><br>
> */Five comments on types of hearings:/*<br>
><br>
> */ /*<br>
><br>
> 1. DotMusic:<br>
<span>><br>
> "The phrase “[w]here necessary” should be removed from the sentence<br>
> “[w]here necessary, the IRP Panel may conduct live telephonic or video<br>
> conferences.” Some members of the IOT also suggested to remove the<br>
> phrase “where necessary.” The parties should be also permitted to engage<br>
> in an in-person hearing for all IRPs, instead of only under<br>
> “extraordinary circumstances.” Claimants should have the opportunity to<br>
> present their arguments directly before the Panel and not have to meet<br>
> such a high threshold."<br>
><br>
> <br>
><br>
</span>> 2. GNSO BC:<br>
<span>><br>
> "...the proposed threshold for witness testimony and cross examination<br>
> should be less stringent." - "The panel should only consider the time<br>
> and expense of witness testimony after first considering the fairness<br>
> and furtherance of the IRP and the gravity of actual or potential harm<br>
> to the claimant." - "Further, the panel should only consider the time<br>
> and expense related to witness testimony and cross examinations if one<br>
> party to the claim can provide proof that such a delay or expense would<br>
> create a legitimate and unjustifiable financial hardship. A claimant<br>
> should not be precluded from offering witness testimony or conducting<br>
> cross examinations simply because it might increase expenses or slightly<br>
> delay the resolution of the dispute."<br>
><br>
> <br>
><br>
</span>> 3. GNSO NCSG:<br>
<span>><br>
> "Everywhere else, all parties to the underlying proceeding have the<br>
> right to intervene -- the right to be heard in the challenge to their<br>
> proceeding. Here too, such a Right of Intervention (a material change to<br>
> Section 7 of these Procedures) must be added." - "Emergency Panels and<br>
> Interim Measures of Protection Must be Openly Heard with All Relevant<br>
> Parties Present"<br>
><br>
> <br>
><br>
</span>> 4. INTA:<br>
<span>><br>
> "INTA believes that witness testimony and interrogatories are important<br>
> methods of discovery that should not be peremptorily ruled out" - "INTA<br>
> recommends that a claimant be given an opportunity to demonstrate a good<br>
> faith need for either a deposition or interrogatories based on the<br>
> standard used to determine whether a witness is necessary at the<br>
> hearing, namely, that the deposition or interrogatory requests (1) are<br>
> necessary for a fair resolution of the claim; (2) are necessary to<br>
> further the purposes of the IRP; and (3) considerations of fairness and<br>
> furtherance of the purposes of the IRP outweigh the time and financial<br>
> expense of the deposition and/or interrogatory requests. INTA would<br>
> support that a limited number of requests for admissions be allowed."<br>
><br>
> <br>
><br>
</span>> 5. Richard Hill:<br>
<span>><br>
> "Regarding article 5, Conduct, I support the language that restricts<br>
> in-person hearings. As mentioned in my previous comment, I see the IRP<br>
> as a kind of administrative law proceeding, and, in my experience,<br>
> in-person hearings are not usually required for such proceedings,<br>
> because the evidence is normally found in written documents, and written<br>
> pleadings on the legal issues suffice to inform the arbitrators. This is<br>
> particularly the case when, as here, the applicable law is relatively<br>
> concise, consisting in our case of the ICANN bylaws and policies." -<br>
> "Regarding article 14, Appeal, you may wish to consider making the<br>
> grounds for appeal more precise. You could consider the grounds for<br>
> appeal of the UN labor-dispute process..."<br>
><br>
> <br>
><br>
</span>> */Current draft language for draft supplementary procedure #5 (less<br>
> footnotes):/*<br>
><br>
> */ /*<br>
><br>
> 5. *Conduct of the Independent Review*<br>
<div><div class="h5">><br>
> <br>
><br>
> It is in the best interests of ICANN and of the ICANN community for IRP<br>
> matters to be resolved expeditiously and at a reasonably low cost while<br>
> ensuring fundamental fairness and due process consistent with the<br>
> PURPOSES OF THE IRP. The IRP PANEL shall consider accessibility,<br>
> fairness, and efficiency (both as to time and cost) in its conduct of<br>
> the IRP.<br>
><br>
> <br>
><br>
> The IRP PANEL should conduct its proceedings by electronic means to the<br>
> extent feasible. Where necessary, the IRP Panel may conduct live<br>
> telephonic or video conferences.<br>
><br>
> <br>
><br>
> The IRP PANEL should conduct its proceedings with the presumption that<br>
> in-person hearings shall not be permitted. The presumption against<br>
> in-person hearings may be rebutted only under extraordinary<br>
> circumstances, where, upon motion by a Party, the IRP PANEL determines<br>
> that the party seeking an in-person hearing has demonstrated that: (1)<br>
> an in-person hearing is necessary for a fair resolution of the claim;<br>
> (2) an in-person hearing is necessary to further the PURPOSES OF THE<br>
> IRP; and (3) considerations of fairness and furtherance of the PURPOSES<br>
> OF THE IRP outweigh the time and financial expense of an in-person<br>
> hearing. In no circumstances shall in-person hearings be permitted for<br>
> the purpose of introducing new arguments or evidence that could have<br>
> been previously presented, but were not previously presented, to the IRP<br>
> PANEL.<br>
><br>
> <br>
><br>
> All hearings shall be limited to argument only unless the IRP Panel<br>
> determines that a the [sic] party seeking to present witness testimony<br>
> has demonstrated that such testimony is: (1) necessary for a fair<br>
> resolution of the claim; (2) necessary to further the PURPOSES OF THE<br>
> IRP; and (3) considerations of fairness and furtherance of the PURPOSES<br>
> OF THE IRP outweigh the time and financial expense of witness testimony<br>
> and cross examination.<br>
><br>
> <br>
><br>
> All evidence, including witness statements, must be submitted in writing<br>
> [X] days in advance of any hearing.<br>
><br>
> <br>
><br>
> With due regard to Bylaw Section 4.3(s), the IRP PANEL retains<br>
> responsibility for determining the timetable for the IRP proceeding. Any<br>
> violation of the IRP PANEL’s timetable may result in the assessment of<br>
> costs pursuant to Section 10 of these Updated Supplementary Procedures.<br>
><br>
> <br>
><br>
> <br>
><br>
> <br>
><br>
><br>
><br>
</div></div>> ______________________________<wbr>_________________<br>
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> <a href="https://mm.icann.org/mailman/listinfo/iot" target="_blank" rel="noreferrer">https://mm.icann.org/mailman/<wbr>listinfo/iot</a><br>
><br>
<span class="HOEnZb"><font color="#888888"><br>
<br>
--<br>
Malcolm Hutty | tel: <a href="tel:%2B44%2020%207645%203523" value="+442076453523">+44 20 7645 3523</a><br>
Head of Public Affairs | Read the LINX Public Affairs blog<br>
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<br></blockquote></div><br></div>