An IRP is an alternate dispute resolution (ADR) juridical mechanism that empowers an Independent Panel of Jurists, acting as a third-party, to engage in a detailed, procedure-based accountability review process. The standard of adjudication, legal and policy review required in an IRP is very high, since the complainant, who is materially affected by the ICANN Board action or decision, has to prove that certain actions that have been taken by ICANN have violated the Bylaws and Articles of Incorporation of the organization. In deciding the IRP, the Panel has to compare the contested actions (or inactions) of the ICANN Board against the existing stipulations laid down in the Bylaws or Articles of Incorporation of ICANN by focusing on a pre-defined standard of review; and to rule whether such actions or inactions were wrongful and had indeed violated the Bylaws and Articles of Incorporation.
DotConnectAfrica Trust is a Mauritius-based charitable organization with an Internet registry service subsidiary – DCA Registry Services Ltd. – in Nairobi, Kenya. DCA Trust had instituted an IRP suit against ICANN to challenge an ICANN Board decision that had been taken in June 2013 to deny DCA’s application for the .Africa new generic top-level domain (gTLD) name.
DCA Trust had applied for the .Africa name under the Global Internet Expansion Program of ICANN that was launched in 2012 to introduce new generic domain names.
ICANN is the global, California-based non-profit that administers the unique system of Internet names, numbers, addresses and protocol parameters that underpin the technical architecture of the Internet Domain Name System (DNS). Since it was founded in 1998, ICANN has regularly overseen the Internet Assigned Names Authority (IANA) contract under the supervision of the United States National Technology & Information Administration (NTIA) – an executive agency of the US Department of Commerce. The NTIA, under President Barack Obama’s Administration, had announced a plan in March 2014 that would achieve the complete devolution of the IANA Technical Functions to a Global Multi-Stakeholder Group led by ICANN that will not be under any governmental control. The same process of transitioning the IANA functions stewardship to ICANN by the NTIA has been inextricably tied to required accountability improvements by ICANN.
In a 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)
After thorough deliberation, the IRP Panel declared 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”.
This recent decision by the ICDR IRP Panel that ICANN violated its Bylaws and Articles of Incorporation is a major blow to ICANN’s claims that it is responsible enough to oversee the IANA Functions Stewardship without any direct US governmental oversight.
ICANN’s failure to prevail in its IRP with DCA Trust thoroughly demonstrates that the ICANN Board and Staff may continue to commit willful violations of ICANN’s Bylaws and Articles of Incorporation, and in the process, take unfair and or discriminatory decisions that may be profoundly harmful to its stakeholders and the global community of Internet users that ICANN serves.
Precedental Value of IRP Panel Declaration
The IRP ruling which came about six weeks after an in-person hearing was conducted by the Panel in Washington D.C. on May 22 and May 23, 2015, also sets a major precedent because of the binding nature of the many previous interim procedural orders and decisions that were rendered by the Panel before this final declaration. Moreover, the DCA vs. ICANN IRP was also the first to be filed under the new gTLD Program of ICANN.
In her response to this important victory achieved by DCA Trust against ICANN, Ms. Sophia Bekele, Founder of the Yes2DotAfrica Campaign and the Ethiopian-born, Executive Director/CEO of DCA Group and Entrepreneur, who also took her complaints against ICANN to the United States Congress 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. We understand that the IRP Panel has recommended that ICANN should 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. Going forward, we now expect ICANN to accept the binding IRP outcome, refrain from any further plans to delegate .Africa to the ZA Central Registry who should now be removed immediately from the new gTLD program; and cooperate fully with DCA Trust to ensure that the IRP Panel ruling is implemented so that .Africa can be delegated to DotConnectAfrica Trust under a cooperative framework that will satisfy the stipulations of DCA’s charitable objectives.
We expect ICANN to fully redress and compensate DCA Trust for all the harm and many injuries that have been directly caused by these apparent violations of the ICANN Bylaws and Articles of Incorporation by the ICANN Board.
The .Africa Internet domain name is for the benefit of the people of the African continent whom we have been fighting for since 2008 to enable them have the .Africa Internet domain extension just like the people of Asia have the .Asia domain.
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:
- ZA Central Registry lacked any valid endorsements for the .Africa string that it applied for; and
- the purported Governmental Advisory Committee Objection Advice against our .Africa was not by consensus application; and
- the ICANN Board had seriously erred in accepting the GAC Advice
The truth has prevailed and we are absolutely happy with the IRP Panel decision. I also give thanks to God for helping to correct this act of victimization that was committed against DCA Trust.”
DotConnectAfrica Trust was represented in the IRP proceedings by the Washington-based law firm of Weil, Weil Gotshal & Manges LLP, with Mr. Arif Ali as lead counsel; while ICANN’s lead attorney in the IRP was Mr. Jeffrey LeVee of Jones Day law firm, Los Angeles. The international IRP Panel comprised of eminent jurists, Mr. Babak Barin (President of Panel), a leading Commercial Arbitration Expert from Canada and a member of the London Court of International Arbitration (LCIA); Professor (Dr.) Catherine Kessedjian, an International Dispute Resolution Specialist and Professor of Law at the University of Panthéon-Assas, Paris, France; and the Honorable Judge William J. Cahill, a retired San Francisco Superior Court Judge.
The IRP Panel awarded substantial legal costs against ICANN as the party that did not prevail in the IRP proceeding.
The final ruling of the IRP Panel is available here : http://dotconnectafrica.org/wp-content/uploads/2015/07/DCA-ICANN-Final-Declaration-9July20151.pdf