ICANN loses .Africa case: IRP panel rules in favor of DCA
The .Africa IRP has finally been ruled in favour of DotConnectAfrica Trust as the prevailing partly in case that has dragged for two years. The panel that comprised of Mr. Babak Barin who was President of Panel, Professor (Dr.) Catherine Kessedjian, and the Honourable Judge William J. Cahill, a retired San Francisco Superior Court Judge on 9th July 2015 declared in a 63 page final ruling that
.. “148. Based on the foregoing, after having carefully reviewed the Parties’ written submissions, listened to the testimony of the three witness, listened to the oral submissions of the Parties in various telephone conference calls and at the in-person hearing of this IRP in Washington, D.C. on 22 and 23 May 2015, and finally after much deliberation, 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.
149. 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.
150. The Panel declares DCA Trust to be the prevailing party in this IRP and further declares that ICANN is to bear, 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…”
A statement from DCA Trust states
“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.”
Brief history of the case:
DCA Trust submitted its case to the International Centre for Dispute Resolution (“ICDR”) in October 2013 as a step towards resolution of the dispute between ICANN and DCA Trust over ICANN Board decisions and actions taken with regard to DCA Trust’s application for the .africa new gTLD which DCA stated was “unfair, discriminatory, and lacked appropriate due diligence and care” as well as “anti-competitive”.
Panel Faults ICANN Governmental Advisory Committee (GAC)
From reading the IRP final ruling, ICANN Governmental Advisory Committee (GAC) which is an advisory took the biggest blame for bungling the .Africa applications by offering advice that had no rational reason or explanation to the ICANN New gTLD Program Committee (NGPC).
The transcript available details the then Chair of ICANN GAC stating that they “talk about creative ambiguity. We leave things unclear so we don’t have conflict”. This in effect means that the GAC did not want to dig into the reasons given by its own members, in order to avoid any conflicts.
Heather also said that “GAC did not provide a rationale. And that was not a requirement for issuing a GAC” when tasked on the fact that GAC could object an applicant, with no reasons, rationale or no discussion of the concepts that are in the rules?
This new ruling puts GAC as the dysfunctional house which ICANN and the community needs to put in check in order to ensure that they have a strict rationale system where all decisions are made with serious backing from international experts and an input from the multistakeholder system.
ICANN endorsement interference
The DCA Trust Vs ICANN ruling also exposed the interference that the ICANN staff as well as the contracted evaluation panels. A section shows how the Africa Union signed a letter drafted by the ICANN staff. ZACR also appear to have been treated with soft gloves to allow their endorsement. This massive corruption totally tipped scales toward one applicant in a system where both applicants ought to have been treated at an equal footing. This underhanded process dealt a huge blow to the scoring system that involves endorsements and thus invalidates ICANN’s endorsement requirements in the future.
The IANA Transition implications:
ICANN’s loss at the hands of the Independent Review Process put at serious stake the ability of ICANN to seek to become free form the US Government. ICANN has been developing a proposal to allow it to operate without the NTIA oversight, now this IANA transition may be put on hold due to the lack of accountability and transparency and the ability of ICANN to operate under rogue rules that undermine fairness and good will.
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.
