Hello all, The notes, recordings and transcripts for the IRP Implementation Oversight Team (IOT) Meeting #8 - 11 August 2016 will be available here: https://community.icann.org/x/WxGbAw A copy of the notes may be found below. Thank you. Kind regards, Brenda Notes This call will be recorded Press *6 on your phone to mute and unmute while not speaking please Agenda A. Three Issues with Updated Supplementary Procedures 1) Application of subsequent modifications 2) Standard for in-person hearings 3) Cross examination in in-person hearings Becky Burr: latest version of the supplementary rules with input from ICANN and Sidley have been distributed on the list. The three main issues, which are not simply drafting issues, are: * Application of subsequent modifications * Standard for in-person hearings * Cross examination in in-person hearings Application of subsequent modifications - Section 2 Scope * Becky Burr: The Complexity of retroactively applying new rules would be daunting as such, proceedings which begin under a set of rules should continue under those rules? * David McAuley: On slide two, changes to supplemental rules I suggest deleting the word "not" in the phrase "would not affect any party's substantive..." and instead insert (where "not" was) the word "significantly". * Holly Gregory: What DM is suggesting, with modifications, is workable. * Becky Burr: using new rules cannot disadvantage the parties. * Kavouss Arasteh: Against the use of SIGNIFICANTLY but supports the last proposal from HG which removes all doubts. * Holly Gregory: TAKE EFFECT proposed change will be included. Next discussion of disadvantage. If someone makes that demonstration, then SOMEONE has to make a judgement call and it is proposed to be the panel. * David McAuley: Disagree with KA on MATERIALITY but agree with HG proposed language. * Kavouss Arasteh: agree with latest language from HG - we can include MATERIALITY but not MAJOR. * David McAuley: I accept MATERIALITY as the word * Holly J. Gregory (Sidley): Thank you Kavouss and David. We will use the materiality language. * Becky Burr: Avri's issue is important. * Avri Doria: But we are maintaining that any current IRP are not affected in any way by the changed rules? I find that problematic on substantive rights. Detailed presentation of her argument. * Becky Burr: also concerned given the changes to the rules are significant. The problem I have is we a situation where there are a number of IRPs have been submitted for decisions at this point - would we be saying you can reopen those which would imply significant consequences. AD? * Avri Doria: The rules we have just discussed (above) could be applied although it is understood it could complicate things. The panel could decide if the changes could materially affect a case. It may cause some things to be re-litigated but it is a one-time issue. * David McAuley: I think we need to avoid causing existing panels to re-litigate substantive matters that have been litigated but not yet resolved. * Kavouss Arasteh: This would seem un-implementable and would significantly complexify the environment. * David McAuley: I think I agree w/Kavouss that this aspect might not be implementable. * Avri Doria: I am not talking about procedural an issue, I am talking about applying the same conditions we just agreed to above to current cases. This is also not suggesting the introduction of new evidence or the rewriting of submissions. * Becky Burr: its about the standard under which ICANN is evaluated - this is a tough issue. * Avri Doria: If the submissions include arguments about the mission then they could become in-scope. * Kavouss Arasteh (missed issue on previous point) * Malcolm Hutty: I wanted to add a item on the Time Bar. Discrepancy on when the clock starts running. Becky Burr - will add to this agenda. Standard for in-person hearings * Becky Burr: We need a reasonably high bar. Many have supported this and ICANN had some concerns about the language and have proposed new language. ICANN is proposing two substantive changes. I am fine with the language about not allowing new arguments etc. as this is reasonable and have no particular feelings on the other points. * David McAuley: Support Sidley language vs ICANN language given the ICANN language is too tight. With respect to ICANN language, I suggest changing this language: "...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..." to language in my next chat entry. Suggested new language in slide three: "...where, upon motion by a Party, the IRP PANEL determines that the party seeking an in-person hearing has clearly demonstrated ..." * Becky Burr: I supports this language. * Malcolm Hutty: I also supports this. * Kavouss Arasteh: I do not support the Sidley language. For me the ICANN language is more clear, precise and understandable. If we want to change CONVINCING EVIDENCE to something else then it should be changed but keep the remainder of the ICANN proposal. * Becky Burr: "where, upon motion by a Party, the IRP Panel determines that the party seeking an in person hearing has clearly demonstrated". * Holly J. Gregory: We at Sidley are fine with the ICANN language. * Samantha Eisner: I heard David say "clearly demonstrates". How about "clearly and convincingly demonstrates"? * Malcolm Hutty: Why does this need to be so tight, Samantha? If a Panel is convinced that a hearing is necessary to a fair outcome, surely it should happen. We've got language to make it abundantly clear this is not the be the normal procedure * Samantha Eisner: Clear and convincing evidence is meant as a signal to people of the type of the burden of proof that would be required in the American legal system. * Becky Burr: The sense of the room that it is generally ok with the ICANN language except for CLEAR AND CONVINCING EVIDENCE and prefer DEMONSTRATE. * Kavouss Arasteh: could live with removing CLEAR. * Holly J. Gregory: Sam's comment if taken will draw in case law about what clear and convincing means * David McAuley 2: drawing in case law is a bad idea in my opinion, at least in this respect * Malcolm Hutty: how about THE IRP PANEL IS CONVINCED THAT .... * Samantha Eisner: prefer CLEARLY stay vs CONVINCING. * Kavouss Arasteh: why delete EVIDENCE. Like Malcom's suggestion. If the panel is CONVINCED that could be enough. * Becky Burr: CLEAR AND CONVINCING makes people uncomfortable as it relates to US court law. * Holly J. Gregory: I think David's original proposal was clearest. * Amy Stathos: We should remember that this is in extraordinary circumstances and we are trying to describe these. * Becky Burr: Meeting the three tests would make it extraordinary. What AS is proposing is to make that it even a higher bar. * Holly Gregory: support BB view. The three tests is a high standard. * Malcolm Hutty: supports BB view. * David McAuley: Agree w/Holly, good point * Amy Stathos: Just trying to create adequate guidance on what is required to meet those three tests for the panel. * David McAuley: I agree with Malcolm's earlier point about panel making decision - if it makes the decision it was convinced and if add "convincing" brings in case law then we are causing problems. * Becky Burr: Why do we think a panel could not make a clear determination without additional guidance? * David McAuley: "convincing" is a good word to instruct a jury - not needed here * Malcolm Hutty: Do not agree with AS. Meeting the three tests is the exceptional circumstance. * Becky Burr: DM's language would fix this. Will schedule next call and advise the list - we have to complete this work. * Kavouss Arasteh: not in favour using CIRCUMSTANCES. Becky Burr: Adjourned. Documents Presented * 11 Aug 16 IRP IOT.pdf<https://community.icann.org/download/attachments/60494171/11%20Aug%2016%20IR...>
