[IOT] status on in-person hearing discussion following today's call

[Kavouss Arasteh]

Beckie
Pls take the ICANN language and delete " Clearly" as follows

 The IRP PANEL should conduct its proceedings with the presumption that
in-person hearings shall not be permitted.  The presumption against
in-person hearings may be rebutted only under extraordinary circumstances,
which are limited to circumstances where, upon motion by a Party, the IRP
PANEL determines that the party seeking an in-person hearing has
demonstrated, with  convincing evidence, that: (1) an in-person hearing is
necessary for a fair resolution of the claim; (2) an in-person hearing is
necessary to further the PURPOSES OF THE IRP; and (3) considerations of
fairness and furtherance of the PURPOSES OF THE IRP outweigh the time and
financial expense of an in-person hearing.  In no circumstances shall
in-person hearings be permitted for the purpose of introducing new
arguments or evidence that could have been previously presented, but were
not previously presented, to the IRP PANEL.

2016-08-11 19:13 GMT+02:00 Burr, Becky <Becky.Burr at neustar.biz>:

> In the hopes of narrowing and resolving differences, I’ve attempted to
> summarize the state of our discussion on the standard for in-person
> hearings.
>
> ICANN offered the following standard with respect to in-person hearings:
>
> The IRP PANEL should conduct its proceedings with the presumption that
> in-person hearings shall not be permitted.  The presumption against
> in-person hearings may be rebutted only under extraordinary circumstances,
> which are limited to circumstances where, upon motion by a Party, the IRP
> PANEL determines that the party seeking an in-person hearing has
> demonstrated, with clear and convincing evidence, that: (1) an in-person
> hearing is necessary for a fair resolution of the claim; (2) an in-person
> hearing is necessary to further the PURPOSES OF THE IRP; and (3)
> considerations of fairness and furtherance of the PURPOSES OF THE IRP
> outweigh the time and financial expense of an in-person hearing.  In no
> circumstances shall in-person hearings be permitted for the purpose of
> introducing new arguments or evidence that could have been previously
> presented, but were not previously presented, to the IRP PANEL.
>
> All participants appear to agree that in-person hearings should be the
> exception to the rule, and the group appears to be comfortable with ICANN’s
> proposal to create a rebuttable presumption against such hearings, subject
> to an exception for “extraordinary” circumstances.  Most participants are
> generally comfortable with using the 3 part test (necessary for fair
> resolution, necessary to further the purpose of the IRP, where those
> considerations outweigh time and expense) to define the “extraordinary
> circumstances” category.    In contrast, Amy articulated a slightly
> different standard permitting in-person hearings only where (a) the
> circumstances are extraordinary (which requires a definition) AND (b)
> requirements (1) – (3) are met. Finally, everyone seemed very comfortable
> that you can’t use in-person hearings to introduce new evidence, etc.
> Participants are not comfortable injecting the US-centric “clear and
> convincing evidence” standard (and debates about what that means, etc),
> into the process.
>
> 1.       Most participants appeared to support the following revisions to
> the ICANN draft proposed by David McAuley:
>
> The IRP PANEL should conduct its proceedings with the presumption that
> in-person hearings shall not be permitted.  The presumption against
> in-person hearings may be rebutted only under extraordinary circumstances,
> which are limited to circumstances where, upon motion by a Party, the IRP
> PANEL determines that the party seeking an in-person hearing has clearly
> demonstrated, with clear and convincing evidence, that: (1) an in-person
> hearing is necessary for a fair resolution of the claim; (2) an in-person
> hearing is necessary to further the PURPOSES OF THE IRP; and (3)
> considerations of fairness and furtherance of the PURPOSES OF THE IRP
> outweigh the time and financial expense of an in-person hearing.  In no
> circumstances shall in-person hearings be permitted for the purpose of
> introducing new arguments or evidence that could have been previously
> presented, but were not previously presented, to the IRP PANEL. *[For
> those who have not been following this closely, the “PURPOSE OF THE IRP” is
> to hear and resolve disputes specified in the ICANN Bylaws.]*
>
> 2.       Kavouss would prefer a Panel finding that the moving Party “
> convincingly” demonstrated the requirements in (1) – (3).  Also, Kavouss
> prefers not to use the word “circumstances.”
>
> 3.       ICANN (Sam and Amy) appear to be uncomfortable with both (1) and
> (2) above.
>
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