Attendees: 

Sub-group Members:   Amy Stathos, Avri Doria, Becky Burr, David McAuley, Edward McNicholas, Fran Faircloth, Holly Gregory, Kate Wallace, Kavouss Arasteh, Malcolm Hutty, Olga Cavalli, Samantha Eisner, Tijani Ben Jemaa

Staff:  Bernie Turcotte, Brenda Brewer

Apologies:  

**Please let Brenda know if your name has been left off the list (attendees or apologies).**

Transcript

Recording

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.
  • Kavous 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.
  • Kavous 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.
  • Kavous 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 a 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.
  • Kavous Arasteh (missed issue on previous point)
  • Malcolm Hutty: I wanted to add a item on the Time Bar. Discreptency 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.
  • Kavous 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.
  • Kavous 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.
  • Kavous Arasteh: not in favour using CIRCUMSTANCES.

 

Becky Burr: Adjourned.


Documents Presented

Chat Transcript

  Brenda Brewer:Good day all and welcome to the IRP-IPT Meeting #8 on 11 August 2016 @ 13:00 UTC!

  Becky Burr:Hi Brenda and Kavouss

  Kavouss Arasteh:hI bECKIE,

  Kavouss Arasteh:hI BRENDA

  Kavouss Arasteh:off iSSUE,

  Holly J. Gregory (Sidley):Hello all. 

  Kavouss Arasteh:May you pls advise the CWG  TIMING call  today

  Brenda Brewer:Call will start in 4 minutes Kavouss.

  Kavouss Arasteh:Does it means that CWG and IOT calls overlapping?

  Holly J. Gregory (Sidley):I thought the CWG call starts in one hour

  Becky Burr:the CWG call starts in one hour Kavouss

  Brenda Brewer:No overlap.  When this one ends, the CWG begins in another Adobe room

  Edward McNicholas, Sidley:Good morning

  Kavouss Arasteh:But when ICANN advise on CWG calls ,it was expected to also include timing

  Holly J. Gregory (Sidley):someone is typing.  Please check that your lines are muted

  Kavouss Arasteh:Pls then send me the adobe for CWG and dial up on both

  Kavouss Arasteh:Tks

  David McAuley:dialing in

  Brenda Brewer:Calling you now Kavouss.

  David McAuley:Brenda, I am 4154

  Kavouss Arasteh:I am not yet connected thuS IT IS NOT MEa

  Bernard Turcotte Staff Support:hi all

  Kavouss Arasteh:dear Bernard

  David McAuley:Hello Bernie

  Kavouss Arasteh:May I respectfully request you to amend your master Plan by including CWG, IOT in the Plan

  Holly J. Gregory (Sidley):I also hear chirldren playinge

  David McAuley:read the siles, have not read Aug 4 supplemental rules yet

  David McAuley:slides I mean

  Malcolm Hutty:Becky, I have a further issue to raise

  David McAuley:the slides are clear and helpful

  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”.

  Malcolm Hutty:For the record, I asked for the floor when the agenda was listed, so as to request a fourth substantive topic

  Kavouss Arasteh:I suggest to replace" Take Place " by " is effective" or " comes into force"

  Kavouss Arasteh:The last part is vague and non clear

  Becky Burr:apologies Malcolm, didn't see yyour request, and I will turn to you next

  Kavouss Arasteh:I disagree with Significantly as it is subjective

  Kavouss Arasteh:Becjkie I have raised my hand before David and Holly

  Becky Burr:you are next Kavouss

  Becky Burr:i asked Holly to respond to David's input.

  Becky Burr:and he appeared in my queue first

  Kavouss Arasteh:i oppose to significantly

  David McAuley:affect or impair

  Kavouss Arasteh:Is this call private?

  David McAuley:Kavouss, I saw your hand up but it was down then when I raised my hand

  David McAuley:thats it

  David McAuley:what becky said

  David McAuley:Becky

  David McAuley:I think Becky's disadvantage is better than affect

  Olga Cavalli:Hi apolgoies for being late

  Becky Burr:hi Olga

  Avri Doria:But we are maintianing that any current IRP are not affected in any way by the changed rules? I find that problematic on substantive rights.

  Becky Burr:I will ask you to speak to that next Avri

  David McAuley:good language Holly - I support

  David McAuley:i accept materiality as the word

  Holly J. Gregory (Sidley):Thank you Kavouss and David.  We will use the materiality language

  Kavouss Arasteh:I have a question on the last part

  David McAuley:I think we need to avoid causing existing panels to relitiage substantive matters that have been litigated but not yet resolved

  David McAuley:relitigate

  David McAuley:this is a tough one

  David McAuley:I think I agree w/Kavouss that this aspect might not be implementable

  Avri Doria:i am anot talking about procedural issue, i am talking at applying the sae conditions we just agrreed to to current cases.

  Avri Doria:And this is also not suggesting the introduction of new evidence on rewrite of submissions.

  Avri Doria:evidence or rewrite ...

  Kavouss Arasteh:Avri, what is your concrete proposal pls?

  David McAuley 2:Our final proposal from WS1 was prospective and we did not mention going back in this manner, Avri's idea makes sense but seems inconsistent with out proposal in some respects

  Avri Doria:give me a sec

  David McAuley 2:we may need more time than one hour

  David McAuley 2:fair enough as becky proposes

  David McAuley 2:Becky

  Kavouss Arasteh:I am sorry I have another important meeting at 14,00 utc

  David McAuley 2:On slide three, in=person hearing,  I am not sure that the word “evidence” is quite right – what is needed is a demonstration but that might be down to argument, consideration of circumstances that are not so much “evidence” as “apparent”

  Avri Doria:ReplaceIRPs commenced prior to the adoption of these Updated Supplementary Procedures shall be governed by the Supplementary Procedures in effect at the time such IRPs were commenced. withIRPs commenced prior to the adoption of these Updated Supplementary Procedures shall be governed procedurally by the Supplementary Procedures in effect at the time such IRPs were commenced. In the event that any of UPS amendments would materially affect judgement on the case as presented  such amendments may be applied in a party successfully ....

  David McAuley 2:that is with respecy to ICANN language

  David McAuley 2:I support Sidley language

  Kavouss Arasteh:I do not support that .

  Avri Doria:oops spaces got swallowed in the cut and paste.  apologies

  David McAuley 2: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.

  David McAuley 2: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 …”

  Kavouss Arasteh:I do not support Sidley language. For me ICANN language is more clear, precise and understandable

  Avri Doria:sent langauge snippet to list.

  Holly J. Gregory (Sidley):we at Sidley are fine with the ICANN language

  Kavouss Arasteh:Tks Holly

  David McAuley 2:I agree with ICANN's last sentence as Becky just did

  Samantha Eisner:I heard David say "clearly demonstrates".  How about "clearly and convincingly demonstrates"?

  David McAuley 2:it is in chat above also

  Becky Burr:"where, upon motion by a Party, the IRP Panel determines that the party seeking an in person hearing has clearly demonstrated"

  Kavouss Arasteh:how the davide proposal could be inserted in Icann

  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

  David McAuley 2:Malcom makes a good point

  David McAuley 2:Malcom - typing bad today

  David McAuley 2:Malcolm

  David McAuley 2:but this is not necessarily evidence as i see it

  Becky Burr:i tend to agree that we are clearly setting the bar high with the David language

  David McAuley 2:and between the two on screen, I prefer Sidleay language

  David McAuley 2:Sidley - oh my what typing

  Kavouss Arasteh:I agree with Holly that clearly convincing is too strong

  David McAuley 2:if clearly and convincingly is seen as higher than clearly, then I prefer clearly

  Holly J. Gregory (Sidley):in effect Sam's comment if taken will drw in case law about what clear and convincing means

  Holly J. Gregory (Sidley):drw + draw

  David McAuley 2:drawing in case law a bad idea in my opinion, at least in this respect

  Becky Burr:+1 David

  David McAuley 2:agreew Malcolm as well

  Amy Stathos:I do not think that would work

  Brenda Brewer:If your phone number is listed in the Attendee pod, please identify your name.  Thank you!

  Holly J. Gregory (Sidley):I think David's orignial proposal was clearest

  Amy Stathos:310xxx5477 is Amy Stathos

  Avri Doria:but an extraordinary circumstance may be defined by changing circumstances &c.

  Malcolm Hutty:I agree with Becky's interpretation here

  David McAuley 2:agree w/Holly, good point

  Avri Doria:what does "could have been previously presented"mean in the context of new circustance or other facts.

  David McAuley 2:I agree w Malcolm's earlier point about panel making decision - if it makes the decisison it was convinced and if add "convincing" brings in case law then we are making problems

  David McAuley 2:"convincing" is a good word to instruct a jury - not needed here

  Holly J. Gregory (Sidley): that was already taken out.

  David McAuley 2:We timed out - but good discussion, thanks Becky, Holly, Bernie, Brenda and all

  Avri Doria:no need to wait a week, there are empty meeting slots on the CCWG schedules

  Becky Burr:Malcolm, could you drop me a note about your additional agenda item

  David McAuley 2:I can give an example about the word evidence

  Malcolm Hutty:@Staff support (minutes) please note that Becky accepted my proposal for a fourth agenda item

  David McAuley 2:ok Becky

  David McAuley 2:Bye all

  Olga Cavalli:thanks regards


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