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Lawyers, other representatives, expert(s), tribunal’s secretary

Procedural Order No. 3 in relation to Phase II of the IRP

On behalf of the Panel, I write further to Afilias' request dated 6 March 2020 for clarification of the First Procedural Order in relation to Phase II of this IRP (Clarification Request); ICANN's submission and the Amici’s joint submission on the Clarification Request, both dated 11 March 2020; and Afilias' response to those submissions dated 12 March 2020. The Panel is also in receipt of ICANN's response dated 16 March 2020 to Afilias' letter of 12 March, to which Afilias has objected in an email communication also dated 16 March 2020.
The Panel also addresses in this letter the suggestions made in Mr. de Gramont's email dated 13 March 2020, sent on behalf of the Parties, regarding the follow up to be given to the Parties' respective Lists of Issues to be Decided in Phase II, submitted to the Panel under cover of Mr. de Gramont's 13 March email.
This letter and the attached Revised Procedural Timetable shall together constitute the Panel's Third Procedural Order in relation to Phase II of the IRP.

A. Clarification Request

On 6 March 2020, Afilias requested clarification (i) as to whether the Amici are permitted, in their Briefs, to add new documents to the record as exhibits or are limited to referring to exhibits that are already on record, or that will be added to the record by virtue of the Parties' upcoming submissions, and (ii) if the Amici are permitted to add documents to the record, for the Panel to set a deadline for documents to be produced by the Amici sufficiently in advance of the deadline for the Parties' submissions on 15 July 2020 in which the Parties will address the Amici’s Briefs.

1) Submissions of the Parties and Amici

In support of its Clarification Request, Afilias argued that any new documents submitted by the Amici would inevitably be "cherry picked" and supportive of their submissions. According to Afilias, the principles of fundamental fairness and due process require that it be granted an opportunity to request documents from the Amici if the latter are allowed to refer to documents that are not already in the record.
ICANN submitted in response that the Panel has decided, in its Decision on Phase I, that the Amici would be entitled to submit "briefings and supporting exhibits". ICANN added that the Panel also decided that the provisions of the Interim Procedures relating to the Exchange of Information do not apply to the Amici. In ICANN's view, Afilias' concern regarding the possibility for the Amici to "cherry pick[]" documents is, for the time being, hypothetical. ICANN submits that if Afilias believes that any exhibits submitted by the Amici are incomplete or present a misleading record, it should advance that argument in its response to the Amici’s submissions so the Panel can assign the exhibits their appropriate weight.
The Amici consider that the First Procedural Order in relation to Phase II clearly states that they may submit exhibits, without specifying that such exhibits are limited to those already in the record. The Amici stress that material evidence may be in their possession and not in the possession of the Parties. For that reason, the Amici argue that the Panel would be deprived of essential material if they are not permitted to file new exhibits. The Amici further contend that the Panel already ruled that the Amici may not propound discovery or be the recipient of information requests.
In response, Afilias reiterates its fairness concerns. It also states that the First Procedural Order does not address the question of whether the Amici’s exhibits are limited to those on record, to documents that have previously been exchanged by the Parties, or to documents that have been produced in advance by the Amici. Afilias also argues that the Panel's decision that the Amici cannot request document production from Afilias does not necessarily imply that the reverse is true, because Afilias bears the burden of proof with respect to its submission while the Amici have no such burden.

2) Directions of the Panel

In its Decision on Phase I, the Panel made clear that, under the Interim Procedures, the Amici are nondisputing parties whose participation in the IRP is through the submission of "written briefings", possibly supplemented by oral submissions at the merits hearing. The Panel also rejected the notion that, under the Interim Procedures, the Amici can enjoy the same participation rights as the disputing parties. It follows that it is for the Parties, who bear the burden of proving their case, to build the evidentiary record of the IRP, and it is based on that record that the Amici "may submit to the IRP Panel written briefing(s) on the DISPUTE or on such discrete questions as the IRP Panel may request briefing" (see Rule 7 of the Interim Procedures).
The Panel expects the Parties, in accordance with the Procedural Timetable, to file the entirety of the remainder of their case as part of the second round of submissions contemplated by the timetable, that is to say, with the Claimant’s Reply and the Respondent’s Rejoinder. As evoked in the Panel's Decision on Phase I (see par. 201), if there is evidence in the possession of the Amici that the Respondent considers relevant to, and that it wishes to adduce in support of its case, be it witness or documentary evidence, that evidence is required to be filed as part of the Respondent’s Rejoinder, and not with the Amici’s Briefs.
The Panel did not preclude the possibility in its Phase I Decision (and the Procedural Timetable) that the Amici might wish to file documents in support of the submissions to be made in their Briefs. By referring to such documents as "exhibits", however, as other arbitral tribunals have in referring to materials to be filed with the submissions of amicus participants, the Panel did not mean to suggest that these "exhibits" (which the Panel would expect to be few in number, and to be directed to supporting the Amici’s submissions, not the Respondent’s case) would become part of the record and acquire the same status as the documentary evidence filed by the Parties.
Should a Party be of the view that documents submitted in support of the Amici’s Briefs are incomplete or somehow misleading, it will be open to that Party to advance the argument in response to the Amici’s submissions and to seek whatever relief it considers appropriate from the Panel.
In the present circumstances, the Panel does not see the need to clarify or add anything to what it said in its Phase I Decision on the subject of the scope of the Exchange of Information provisions of the Interim Procedures.

B. Lists of Issues to be Decided in Phase II

By email dated 13 March 2020, the Parties informed the Panel that they had again attempted - without success - to agree a joint list of issues to be decided in Phase II. The Parties also submitted with that email message their respective proposed "joint" lists.
While unable to agree on a joint list of issues to be decided in Phase II, the Parties agreed on the following suggested procedure for the Panel ultimately to determine the questions on which the Amici will be invited to submit briefs. To quote from the Parties’ 13 March email communication:

We understand that the purpose of the issues list requested by the Panel is at least in part to assist the Panel in determining the questions on which the Amici will be invited to submit briefs. In that regard, we note that the Panel has directed the Parties and Amici to make "[s]ubmissions on questions as to which the Amici will be permitted to submit briefings to the Panel, as well as page limits and other modalities" by 24 April. The Parties together propose the following modification to the Procedural Timetable for Phase II in order to make those submissions as useful to the Panel (and the Parties) as possible. We propose that the Panel direct the Amici to provide to Afilias and ICANN the list of questions that they wish to address—along with their proposed page limits and modalities—by Friday, 27 March. That will give the Parties and Amici ample time to meet and confer on the proposed questions, page limits, and modalities. If the Parties and Amici can agree on these items, we will so advise the Panel on 24 April. If not, the Amici’s proposed list of questions will be submitted to the Panel on 24 April, along with submissions from the Parties and Amici concerning those areas on which they cannot agree.

The Panel accepts the Parties' suggested modifications to the Procedural Timetable, and accordingly directs the Parties and Amici to comply with the procedure set out above, as jointly suggested by Afilias and ICANN, except that the date for the Amici to provide to the Parties the list of questions that they wish to address, along with their proposed page limits and modalities, is hereby extended from 27 March 2020 to 8 April 2020. A revised Procedural Timetable reflecting those changes is attached to this letter.
The Panel will schedule a conference call with the Parties and Amici early in the month of June to discuss whether, in light of the current pandemic, the modalities of the August hearing should remain unchanged, or be revised.


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