[IOT] IOT call Jan. 11 at 19:00 UTC and comments on one agenda item (Types of Hearings)

Malcolm Hutty malcolm at linx.net
Wed Jan 3 16:00:43 UTC 2018

On 02/01/2018 15:03, McAuley, David via IOT wrote:
> There are five specific comments to consider. The five comments are from:
>   * DotMusic;
>   * The GNSO Business Constituency;
>   * The GNSO Noncommercial Stakeholder Group;
>   * The International Trademark Association; and
>   * Richard Hill.
> Their comments are included at bottom after my signature lines.

Happy New Year, everyone,

It may be that the current Rule 5 should be left untouched, but I see
little merit in Richard Hill's reasoning.

The critique from BC and NCSC, that this rule is exceptionally
restrictive, is well made. While it may be that most claims can be
fairly assessed on paper without need for a hearing or witnesses, Rule 5
erects a potent bar against a hearing, and imposes a heavy burden on a
party wishing to call a witness. That's probably a good thing, but if
there are no clear criteria for when you can overcome it, we risk either
it never being overcome, or else the "exceptional" becoming the norm.
Neither is a good outcome.

I can see several other weaknesses in the current Rule 5:

1) It conflates the issue of whether there should be an in-person
hearing with the issue of whether witness testimony should be allowed.
These are separate questions: witness testimony can also be in writing.

2) As drafted, it gives primary consideration to cost and speed of
resolution, and only secondary consideration to fairness and due
process. I agree with BC that this has it back to front.

3) It acts as a rule against hearings and witnesses per se, even though
this is only justified in terms of cost. This precludes options for
mitigating, rather than avoiding, such costs.

I would like to hear from ICANN about the nature and scale of the costs
that would be incurred if this rule were relaxed.
 - Are we just concerned about the cost of witnesses? It seems to me
that since parties bear their own costs, this is a voluntary expense.

 - Is this mostly about increased panelist fees and expenses? That could
be controlled in a more fine grained manner, eg. by limiting the number
of days.

 - A procedure commonly used in ordinary courts is a timetabling order.
We could require the panel to set out a timetabling order at the
beginning, limiting both time for argument, time for witnesses and for
cross- and rebuttal. This would give us more flexibility. While I think
there is no mention of this in the Supplementary Rules beyond the brief
aside in the final paragraph of Rule 5, hasn't this been practice in the
past? If it is current practice, the Rules really ought to reflect that.

4) The conditions for when a hearing can be held seem pretty opaque, as
far as guidance to the Panel goes. It rather seems to go heavy on the
emphasis of "we really don't want this, except when really exceptional",
and light on any explanation of what we consider suitably exceptional.
This isn't helpful to anyone, especially the Panel.

5) Generally, it seems silent on a few things it should probably cover.
For example, what if *both* ICANN and the Claimant want a hearing? What
if they both want it, but an intervening party does not? The text is
silent on these issues.

Personally, I am sympathetic to the concerns raised by four of the five
public comments, but I am also concerned not to open the door to one
side simply outspending the other.

If the group agrees, I would aspire to improve this text - not to make
it easier to hold hearings (rather the opposite) but to make it more
clear and more predictable, and give better guidance to the Panel.

Recognising David's request for textual proposals, not just comment,
please find attached a straw man.

Kind Regards,


> The draft supplementary procedure
> <https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf>
> most involved is #5, Conduct of the Independent Review. It is quoted
> below as well, after the comments – however the footnotes that appear
> with #5 (footnotes 16 – 19) have not been included – you can see them
> via the link in this paragraph.
> Some Bylaws considerations:
>   * Bylaw 4.3(a)(vii) says that one of the purposes of IRP is to secure
>     the accessible, transparent, efficient, consistent, coherent, and
>     just resolution of Disputes.
>   * Bylaw 4.3(n)(iv)(E) provides that the supplementary procedures are
>     intended to ensure fundamentalfairness and due process and shall at
>     a minimum address [among other things] … whether hearings shall be
>     permitted, and if so what form and structure such hearings would take.
>   * Bylaw 4.3(s) provides that anIRP Panel should complete an IRP
>     proceeding expeditiously, issuing an early scheduling order and its
>     written decision no later than six months after the filing of the
>     Claim, except as otherwise permitted under the Rules of Procedure.
> In my opinion as a participant, the comment from Richard Hill states the
> best approach – supporting the rule as currently drafted. It appears to
> me that the current draft of Rule #5 strikes the right balance among
> presumptions and permitted flexibility while adhering to the idea that
> IRP is to be expeditious. The lack of a hearing, except in exceptional
> circumstances, does not mean that the IRP is unable to provide
> accessible, transparent, efficient, consistent, coherent, and just
> resolution of disputes as the purpose of the Bylaw requires.
> There is one other issue we should decide while on this rule. Rule 5
> currently says, in part: “All evidence, including witness statements,
> must be submitted in writing *[X] days* in advance of any hearing.”
> I suggest we insert 15 calendar days in this provision – that should
> leave time for the panel to allow a rebuttal offer is it is so inclined.
> Best regards,
> David
> */ /*
> David McAuley
> Sr International Policy & Business Development Manager
> Verisign Inc.
> 703-948-4154
> */ /*
> */ /*
> */Five comments on types of hearings:/*
> */ /*
>  1. DotMusic:
> "The phrase “[w]here necessary” should be removed from the sentence
> “[w]here necessary, the IRP Panel may conduct live telephonic or video
> conferences.” Some members of the IOT also suggested to remove the
> phrase “where necessary.” The parties should be also permitted to engage
> in an in-person hearing for all IRPs, instead of only under
> “extraordinary circumstances.” Claimants should have the opportunity to
> present their arguments directly before the Panel and not have to meet
> such a high threshold."
>  2. GNSO BC:
> "...the proposed threshold for witness testimony and cross examination
> should be less stringent." - "The panel should only consider the time
> and expense of witness testimony after first considering the fairness
> and furtherance of the IRP and the gravity of actual or potential harm
> to the claimant." - "Further, the panel should only consider the time
> and expense related to witness testimony and cross examinations if one
> party to the claim can provide proof that such a delay or expense would
> create a legitimate and unjustifiable financial hardship. A claimant
> should not be precluded from offering witness testimony or conducting
> cross examinations simply because it might increase expenses or slightly
> delay the resolution of the dispute."
>  3. GNSO NCSG:
> "Everywhere else, all parties to the underlying proceeding have the
> right to intervene -- the right to be heard in the challenge to their
> proceeding. Here too, such a Right of Intervention (a material change to
> Section 7 of these Procedures) must be added." - "Emergency Panels and
> Interim Measures of Protection Must be Openly Heard with All Relevant
> Parties Present"
>  4. INTA:
> "INTA believes that witness testimony and interrogatories are important
> methods of discovery that should not be peremptorily ruled out" - "INTA
> recommends that a claimant be given an opportunity to demonstrate a good
> faith need for either a deposition or interrogatories based on the
> standard used to determine whether a witness is necessary at the
> hearing, namely, that the deposition or interrogatory requests (1) are
> necessary for a fair resolution of the claim; (2) are 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 the deposition and/or interrogatory requests. INTA would
> support that a limited number of requests for admissions be allowed."
>  5. Richard Hill:
> "Regarding article 5, Conduct, I support the language that restricts
> in-person hearings. As mentioned in my previous comment, I see the IRP
> as a kind of administrative law proceeding, and, in my experience,
> in-person hearings are not usually required for such proceedings,
> because the evidence is normally found in written documents, and written
> pleadings on the legal issues suffice to inform the arbitrators. This is
> particularly the case when, as here, the applicable law is relatively
> concise, consisting in our case of the ICANN bylaws and policies." -
> "Regarding article 14, Appeal, you may wish to consider making the
> grounds for appeal more precise. You could consider the grounds for
> appeal of the UN labor-dispute process..."
> */Current draft language for draft supplementary procedure #5 (less
> footnotes):/*
> */ /*
> 5. *Conduct of the Independent Review*
> It is in the best interests of ICANN and of the ICANN community for IRP
> matters to be resolved expeditiously and at a reasonably low cost while
> ensuring fundamental fairness and due process consistent with the
> PURPOSES OF THE IRP. The IRP PANEL shall consider accessibility,
> fairness, and efficiency (both as to time and cost) in its conduct of
> the IRP.
> The IRP PANEL should conduct its proceedings by electronic means to the
> extent feasible. Where necessary, the IRP Panel may conduct live
> telephonic or video conferences.
> 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, where, upon motion by a Party, the IRP PANEL determines
> that the party seeking an in-person hearing has demonstrated 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
> All hearings shall be limited to argument only unless the IRP Panel
> determines that a the [sic] party seeking to present witness testimony
> has demonstrated that such testimony is: (1) necessary for a fair
> resolution of the claim; (2) 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 witness testimony
> and cross examination.
> All evidence, including witness statements, must be submitted in writing
> [X] days in advance of any hearing.
> With due regard to Bylaw Section 4.3(s), the IRP PANEL retains
> responsibility for determining the timetable for the IRP proceeding. Any
> violation of the IRP PANEL’s timetable may result in the assessment of
> costs pursuant to Section 10 of these Updated Supplementary Procedures.
> _______________________________________________
> IOT mailing list
> IOT at icann.org
> https://mm.icann.org/mailman/listinfo/iot

            Malcolm Hutty | tel: +44 20 7645 3523
   Head of Public Affairs | Read the LINX Public Affairs blog
 London Internet Exchange | http://publicaffairs.linx.net/

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