DotConnectAfrica has emerged as the prevailing party in a .africa case involving ICANN and has been running for two years. The case commenced officially in October 2013 when DCA Trust sent its first Notice of IRP to ICANN as a process towards resolving of the dispute between ICANN and DCA Trust over ICANN discriminatory Board decisions and actions taken with regard to DCA Trust’s application for the DotAfrica new gTLD.
This is a final win that results after the stepwise procedural declarations that were in favor the .Africa applicant. On 12 May 2014, the Independent Review Panel granted an Interim Relief granted a decision that ICANN should hold off from further processing of ZA Central Registry’s (ZACR) application for the DotAfrica top-level domain (TLD) for the time being.
The ruling puts ICANN in very bad light especially in regards to the fact that the ruling that has been termed as the land mark of the new gTLD program emerges as the precedential ruling and the first even in the new gTLD program.
Here is a summary of the Panel’s ruling
For reasons explained in more detail below, and pursuant to Article IV, Section 3, paragraph 11 (c) of ICANN’s Bylaws, the Panel declares that both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.
Furthermore, pursuant to Article IV, Section 3, paragraph 11 (d) of
ICANN’s Bylaws, the Panel recommends that ICANN continue to refrain from delegating the .AFRICA gTLD and permit DCA Trust’s application to proceed through the remainder of the new gTLD application process.
Finally, DCA Trust is the prevailing party in this IRP and ICANN is responsible for bearing, pursuant to Article IV, Section 3, paragraph 18 of the Bylaws, Article 11 of Supplementary Procedures and Article 31 of the ICDR Rules, the totality of the costs of this IRP and the totality of the costs of the IRP Provider.
As per the last sentence of Article IV, Section 3, paragraph 18 of the Bylaws, DCA Trust and ICANN shall each bear their own expenses. The Parties shall also each bear their own legal representation fees.
The 63 page ruling also exposes the systematic failures throughout the process of handling the .Africa case and the GAC especially emerged as the ICANN’s weakest link after it was identified to have given the ICANN New gTLD Program Committee (NGPC)and Board Governance Committee (BCG) un-ratified objection proposal to stop DCA Trusts application from proceeding.
The NGPC also failed to apply the necessary due diligence and seek the reasons behind the GAC Objection which was not a consensus. A portion of the IRP hearing transcript details the former GAC Chair Heather Dryden stating that the GAC practices the business of “creative ambiguity” where “ We leave things unclear so we don’t have conflict.”
When asked by Arbitrator Kessedjian if GAC takes a decision to object to an applicant without reasons, rationale or discussion of the concepts that are in the rules, Ms. Dryden replied “I’m telling you the GAC did not provide a rationale. And that was not a requirement for issuing a GAC”
ICANN staff were also found to have worked with the Geographic Panel Evaluators to ensure that ZACR, but not DCA, would be able to pass evaluation, and even went to draft a letter supporting ZACR for the AUC to be submitted back to ICANN. These were found to be part of the activities that cost the .Africa application a transparent and just evaluation.
After the ruling, DotConnectAfrica through the CEO Ms. Sophia Bekele said
“We are very thankful to the IRP Panel for vindicating our position on .Africa. We have always believed that ICANN treated DCA unfairly and committed many serious violations and wrongdoings against DCA’s .Africa new gTLD application”
She also added that “This is a great day for accountability, transparency, justice, fairness, probity and ethical global Internet governance. During the IRP, DotConnectAfrica Trust clearly established three key points:
(a) ZA Central Registry lacked any valid endorsements for the .Africa string that it applied for; and
(b) the purported Governmental Advisory Committee Objection Advice against DCA Trust’s .Africa was not by consensus application; and
(c) the ICANN Board had seriously erred in accepting the GAC Advice
The .Africa IRP panel consisted of a leading Commercial Arbitration Expert from Canada and Panel Chair Mr. Babak Barin, Prof. Catherine Kessedjian, an International Dispute Resolution Specialist Paris, France; and the Hon. Judge William J. Cahill, a retired San Francisco Superior Court Judge. DotConnectAfrica were represented by Weil Gotshal & Manges LLP, where Mr. Arif Ali was lead counsel; while ICANN’s lead attorney in the IRP was Mr. Jeffrey LeVee of Jones Day law firm, Los Angeles.
The case is a landmark precedent that could seriously stall the IANA transition proposal that ICANN is in the process of developing. It is also a high possibility that it will attract a sticker watch from the US congress.
From the recent US Senate Committee Hearing in Washington DC, Senator John Thune, Chairman of the Senate Committee on Commerce, Science and Transportation had said:
“Some worry that, in the absence of U.S. involvement in the IANA functions, ICANN may be subject to capture by authoritarian regimes, and these are valid concerns.”….. “But I also worry that, in the absence of the contract with the U.S government, ICANN could become an organization like FIFA – the international soccer organization that is flush with cash, unresponsive to those it supposedly serves, and accountable to no one.” (See Chairman Thune’s Majority Statement)