GCC vs ICANN IRP faults the ICANN Board’s Barebones Resolution

The ICANN board in its main agenda for the regular meeting, were at the time set to discuss the formal considerations of both the Amazon EU S.à.r.l. v. ICANN Independent Review Process Final Declaration followed by the further Consideration of the Gulf Cooperation Council v. ICANN Independent Review Process Final Declarations.

Both applicants prevailed against ICANN in the IRP’s, the most recent being the .Amazon case where the IRP panel declared [PDF]

“The Board, acting through the NGPC . . . failed in its duty to independently evaluate and determine whether valid and merits-based public policy interests existed supporting the GAC’s consensus advice . . . [and thus] failed to exercise the requisite degree of independent judgment…“

The Gulf Cooperation Council (GCC) initiated Independent Review Process (IRP) proceedings challenging the New gTLD Program Committee’s (NGPC’s) decision on 10 September 2013 that “ICANN will continue to process [the .PERSIANGULF] application in accordance with the established procedures in the [Guidebook.]” (See Resolution 2013.09.10.NG03 (Annex 1), available at….) The GCC objected to the application for the .PERSIANGULF generic top level domain (gTLD) submitted by Asia Green IT System Ltd. (Asia Green) due to what the GCC described as a long-standing naming dispute in which the “Arab nations that border the Gulf prefer the name ‘Arabian Gulf'” instead of the name “Persian Gulf.” (See IRP Request, ¶ 3, available at [PDF, 2. 44 MB].)

GCC prevails against ICANN

The IRPs’s panel in its Final Declaration [PDF, 2.52 MB] rebuked ICANN’s response to GAC advice adoption stating that If, as ICANN argues, only the Durban Communiqué could provide GAC advice to the Board, then the GAC clearly did not express concerns about the “.persiangulf’ gTLD application. That Communiqué stated no more than this: “The GAC has finalised its consideration of [the application] and does not object to [t] proceeding”. This underlies ICANN’s main defense that the ICANN Board followed the GAC’s advice to the letter, by resolving to allow Asia Green’s application to proceed. We find ICANN’s defense to be unduly formalistic and simplistic.

ICANN had attempted to explain to the panel why they adopted GAC advice despite it being not consensus leading to the decision to allow Asia Green’s application to proceed despite protestations from one GAC member. This related especially to the Durban GAC advice that the board relied on.

The panel also faulted  the  ICANN Board for not doing due diligence before they reached the decision by asking for draft minutes concerning GAC discussions of such a geo-politically charged application.The same rebuke was passed during the .Africa IRP where the panel specifically faulted  ICANN’s own witness, Ms. Heather Dryden who acknowledged during the hearing, the GAC did not act with transparency or in a manner designed to insure fairness.” Dryden specifically testified that in GAC’s business: “we talk about creative ambiguity. We leave things unclear so we don’t have conflict.”

If the board had undertaken a modicum of due diligence and independent investigation, it would easily have learned about the GCC’s serious concerns as raised in the GAC meetings in Durban and in Beijing, and how and why the GAC failed to reach concensus in Durban against the “.persiangulf” application. The panel wrote

Barebones Resolution, based on a bare-bones resolution of GAC Communique and Scorecard

Basing on the .Africa IRP once more, the panel stated that ICANN, just like in .Africa were obligated to at a minimum investigate the matter before rejecting the application, the panels writes:

Contrary to ICANN’s attempt to distinguish the DotConnectAfrica case, we find that ICANN’s transparency obligations arose here despite the absence of Consensus GAC advice. Indeed transparency and the related need for further due diligence were more compelling in this case, given the pending community Objection concerning a sensitive application..

Panel went further

That, overall, based on the submissions and evidence in the record, we are constrained to find that the Board passed a bare-bones resolution, based on a bare-bones GAC communique and Scorecard, to allow Asia Green’s “spersianguir application to proceed, to virtually certain registration and operation. We can only regard the Board’s routine treatment of the non-routine “.persianguir gTLD application to have been non-transparent, unfair and essentially oblivious to the well-known geopolitical sensitivities associated with the name “Persian Gulf’. This treatment consequently fell far short of the mission and core values enshrined in ICANN’s Articles of Incorporation and Bylaws, specifically Article 1, Section 2, Paragraphs 4, 8 and 11, of the Bylaws; Article H, Section 3, of the Bylaws; Article III, Section 1, of the Bylaws; and Article 4 of the Articles of Incorporation.

In concluding the panel stated

4(b), of the ICANN Bylaws, we conclude that the ICANN Board failed to “exercise due diligence and care in having a reasonable amount facts in .front of them” before deciding, on 10 September 2013, to allow the “.persiangulf’ application to proceed. We find, on the balance of probabilities on the basis of the Parties’ submissions and evidence, that this decision effectively was an unreasoned vote on an unreasoned Scoreboard entry reciting the one-line Durban Communiqué statement that the GAC “does not object” to the application proceeding. Under the circumstances, and by definition, the Board members could not have “exercise [d independent judgment in taking the decision, believed to be in the best interests of the company”, as they did not have the benefit of proper due diligence and all the necessary facts. This reflects Board action inconsistent with the Articles and Bylaws, contrary to Article IV, Section 3, Paragraph 4(c), of the ICANN Bylaws.

The Panel also affirmed their authority in the decision saying

As a final matter, we do not accept ICANN’s position that we lack authority to include affirmative declaratory relief. Like the 1RP Panel in the DotConnectAfrica Trust case, we consider that Article IV, Section 3, Paragraph 11(d), of the ICANN Bylaws does give us “the power to recommend a course of action for the Board to follow as a consequence of any declaration that the Board acted or failed to act” inconsistently with its Articles of Incorporation and Bylaws.74 That Bylaw bears repeating: The IRP Panel shall have the authority to …. recommend that the Board stay any action or decision or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP. (Emphasis added.)

We agree with the DotConnectAfrica Trust IRP Panel that the “language and spirit” of Paragraph 11(d) empowers us to recommend redress for such injury or harm. 75 The words “shall” and “opinion” reflect that, similar to any decision maker, the Panel may and should recommend affirmative steps to be taken by the Board to correct the consequences of actions it took inconsistent with the Bylaws and Articles of Incorporation. Here, given the harm caused to the GCC’s due process rights by the Board’s decision — taken without even basic due diligence despite known controversy — to allow Asia Green’s “.persiangulf” gTLD application to go forward, adequate redress for the GCC requires us to recommend not a stay of Asia Green’s application but the termination of any consideration of “.persiangulf” as a gTLD. The basic flaws underlying the Board’s decision cannot be undone with future dialogue. In recognition of ICANN’s core values of transparency and consistency, it would seem unfair, and could open the door to abuse, for ICANN to keep Asia Green’s application open despite the history. If the issues surrounding, .persiangulf’ were not validly considered with the first application, the IRP Panel considers that any subsequent application process would subject all stakeholders to undue effort, time and expense.

The board is yet to post its final consideration on the IRP, other than of further consideration.

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