home gTLD's, ICANN Panel interprets Declarations as binding on the .Africa IRP, Lectures ICANN on core accountability implications

Panel interprets Declarations as binding on the .Africa IRP, Lectures ICANN on core accountability implications


The IRP Panel has made yet the boldest statement that is set to shake ICANN’s legal team. These statements have been made explicitly in the latest IRP Procedural ruling that states

Based on the foregoing and the language and content of the IRP Procedure, the Panel concludes that this Declaration and its future Declaration on the Merits of this case are binding on the Parties.

This statement has been made as a result of ICANN submission that

“it is not within the scope of this Panel’s authority to declare whether IRP Panel declarations are binding on ICANN’s Board…the Panel does not have the authority to re-write ICANN’s Bylaws or the rules applicable to this proceeding. The Panel’s mandate is strictly limited to ‘comparing contested actions of the Board [and whether it] has acted consistently with the provisions of those Articles of Incorporation and Bylaws, and […] declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws’

DotConnectAfrica have argued in that case that

“[The] IRP process is an arbitration in all but name. It is a dispute resolution procedure administered by an international arbitration service provider, in which the decision-makers are neutral third parties chosen by the parties to the dispute. There are mechanisms in place to assure the neutrality of the decision-makers and the right of each party to be heard. The IRP Panel is vested with adjudicative authority that is equivalent to that of any other arbitral tribunal: it renders decisions on the dispute based on the evidence and arguments submitted by the parties, and its decisions are binding and have res judicata and precedential value. The procedures appropriate and customary in international arbitration are thus equally appropriate in this IRP. But in any event, and as discussed below, the applicable rules authorize the Panel to conduct this
IRP in the manner it deems appropriate regardless of whether it determines that the IRP qualifies as an arbitration.”

Document production

The panel determines that there will be document production to aid the determination of merits in the case stating that

Seeing that the Parties are both in agreement that some form of documentary exchange is permitted under the IRP Procedure, and considering that Articles 16 and 19 of the ICDR Rules respectively specify, inter alia, that, “[s]ubject to these Rules the [Panel] may conduct [these proceedings] in whatever manner it considers appropriate, provided that the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case” and “at any time during the proceedings, the tribunal may order parties to produce other documents, exhibits or other evidence it deems necessary or appropriate”, the Panel concludes that some document production is necessary to allow DCA Trust to present its case.

The Panel has issued the following procedural directions:

  1. The Panel orders a reasonable documentary exchange in these proceedings with a view to maintaining efficacy and economy, and invites the Parties to agree by or before 29 August 2014, on a form, method and schedule of exchange of documents between them;

  2. The Panel permits the Parties to benefit from additional filings and supplemental briefing going forward and invites the Parties to agree on a reasonable exchange timetable going forward;

  3. The Panel allows a video hearing as per the agreement of the Parties, but reserves its decision to order an in-person hearing and live testimony pending a further examination of the representations that will be proffered by each side, including the filing of any additional evidence which this Decision permits; and

  4. The Panel permits both Parties at the hearing to challenge and test the veracity of statements made by witnesses.

This is set to be a precedential case since it is also the first IRP proceeding in the new gTLD process.


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