Weeks after the Booking.com attorney Flip Petillion wrote to ICANN saying that the .africa IRP ruling shows that ICANN has to revisit its decision-making over .hotels, another applicant Asia Green IT Systems (AGIT) for .islam and .halal has written to ICANN to seek a review of past decisions.
Booking.com’s letter stated
“ICANN — and the BGC — has maintained the position 1) that the fact the process established by ICANN was followed is sufficient reason to reject that challenge and 2) that the fact that the process allowed neither for Booking.com to be heard nor for a review of the decision by the ICANN Board is of no relevance.
In the interim, IRP panels [With emphasis .africa IRP] have confirmed that this process-focussed position is unsustainable. The ICANN Board has an overriding responsibility for making fair, reasoned and non-discriminatory decisions under conditions of full transparency.
According to ICANNWiki these applications, Since the GAC provided individual government’s advice on this TLD and not a GAC consensus objection, ICANN Board Chair Steve Crocker asked the GAC to provide further consensus advice on the application. However, after the conclusion of ICANN 48 in Buenos Aires, GAC Chair Heather Dryden wrote to Mr. Crocker informing him that the GAC would provide no further advice on the .islam and .halal strings. This means that the ICANN Board will now have to decide the fate of the application without strong consensus advice from GAC.
A recent Letter from Mike Rodenbaugh to John Jeffrey [Published 14 August 2015] who is the attorney for Asia Green IT Systems states that
We believe that the recent IRP decision in the .AFRICA matter, and the Board’s general acceptance of that decision in its July 16 resolution, require that 1) the Board also return the subject applications to processing by the Global Domains Division, and 2) that the GDD issue contracts immediately to AGIT to operate these two gTLDs.
The IRP panel’s binding decision held that the Board violated ICANN’s Articles of Incorporation and Bylaws by blindly accepting unsubstantiated GAC Advice (indeed, “consensus” advice) to reject DCA’s application. The IRP panel held that, at minimum, the Board should have made an appropriate inquiry and investigation into the rejection, and should have provided substantial reasoning for any rejection, given the substantial investment DCA made in the application, and given ICANN’s purported requirement that applicants waive all rights to redress in court.
In this matter, the Board thus far has blindly accepted unsubstantiated advice not of the consensus GAC, but of just a few members of the GAC, and has placed the subject applications into undefined, interminable purgatory.
There was no reasoning given for ignoring the IO and/or ICDR decisions, or for granting these few governments such unprecedented and troubling veto power over these applications. Logically, as the Board is not able to accept unsubstantiated, consensus GAC Advice to reject one application for .AFRICA, it is not able to accept unsubstantiated, non-consensus advice of just a few GAC members to reject two applications for .HALAL and .ISLAM
AGIT also makes the 11 further requests of ICANN, and requires that ICANN answers these in detail including providing an entirely unredacted version of both the .AFRICA IRP decision and all documents submitted to and/or considered by the IRP panel in reaching that decision, which was a subject of discussion after ICANN redacted the incriminating parts of the .Africa IRP panel.
From the letters above of the applicants such as Booking.com and Asia Green IT Systems’ new gTLD applications for .HALAL and .ISLAM, there is little doubt that more applicants will start pestering ICANN for revelations on gTLD applications that could have been controversially handled by ICANN during the application period.
The DCA Trust prevailing over ICANN will be of a precedential value to other applicants who will require more detailed answers from the ICANN staff, new gTLD panels and the board.