ICANN Must Produce Witnesses, insists DCA vs ICANN .africa Tribunal

ICANN wants the .africa Tribunal to Accept Witness Statement on Face value!

A new update has emerged from the ICDR-led Independent Review Process (IRP) International Tribunal that is tasked with deciding the legal dispute between DotConnectAfrica Trust and ICANN over the .Africa new gTLD name string.

Tribunal’s clarification to key procedural matters on the IRP hearing

The latest interim declaration is related to IRP procedures for the hearing which will be conducted by the Panel to hear counsel arguments and witnesses.

This interim ruling is the third in the series that has been rendered by the IRP Panel, following the Panel’s review of the Parties’ written submissions concerning the following two issues filed on 8 April 2015:

 i.     Presence of and opportunity for the Panel only to ask witnesses viva voce questions during any in-person, telephonic or video hearing ordered by the Panel; and

ii.      Evidentiary treatment by the Panel of the witness statements already filed, if there is to be no cross-examination by the Parties and no viva voce questions asked by the Panel during any in-person, telephonic or video hearing ordered by the Panel.

ICANN’s witness will not testify !

ICANN in its own argument had written to the IRP Panel administering the DCA Trust Vs ICANN IRP to indicate that its own witnesses mentioned in the IRP case, i.e. ICANN Board member, Mr. Chalaby, and former GAC Chair Ms. Dryden would not testify before the Panel

ICANN had argued that its

“Bylaws do not permit any examination of witnesses by the parties or the Panel during the hearing.”

In support of this proposition, ICANN cites Article IV, section 3, and Paragraph 12 of its Bylaws. ICANN also writes that

“it understands that, in its March 24, 2015 declaration, the panel concluded that a hearing could include not only arguments but examination of witnesses, rejecting ICANN’s argument that the hearing of witnesses was not permissible.   However, ICANN has determined that it has no choice but to follow the provisions of its Bylaws that set forth the rules for all Independent Review proceedings.”

Instead, ICANN offers the Panel the possibility to ask witnesses questions in writing.   However the Panel

“considers it important and useful for ICANN’s witnesses, and in particular, Mr. Chalaby as well as for Ms. Sophia Bekele Eshete to be present at the hearing of this IRP.”

The Panel also declared that

“the Panel requires all three witnesses in this IRP to be physically present at the hearing in Washington, D.C. If a witness fails to appear at the hearing without a valid reason acceptable to the Panel, the Panel shall in its sole discretion draw the necessary inferences and reach appropriate conclusions regarding that witness’s Declaration……Based on the above, the Panel requires all three witnesses in this IRP to answer viva voce any questions the Panel may have for them, and thereafter, answer any follow up questions that counsel for the Parties may have for them in respect to the questions asked by the Panel

ICANN ONLY wants written questions for its witnesses ?

ICANN has also requested in that same letter that they would wish to address written questions to its witnesses before the hearing, and if the Panel needs more information after the hearing to clarify the evidence presented during the hearing.

The Panel, however, is unanimously of the view that this approach is fundamentally inconsistent with the requirements in ICANN’s Bylaws for it to act openly, transparently, fairly and with integrity.”   In reaching this declaration on in-person hearing, the Panel has clearly argued thus, asking:

“How can a Panel compare contested actions of the Board and declare whether or not they are consistent with the provisions of the Articles of Incorporation and Bylaws, without the ability to fact find and make inquiries concerning those actions in the manner it considers appropriate? ”

This means they take seriously the presence of the three witnesses to corroborate their written testimonies as regards the decisions to be made about the case.

Our Witnesses can testify in writing but not in person, says ICANN?

The strange yet interesting aspect of this saga is that ICANN obtained written witness statements from Mr. Chalaby and Ms. Dryden, but does not want these witnesses to participate in a formal hearing that the Panel will convene to verify these previously submitted statements.  ICANN wants the Panel to accept these statements on ‘face value’.     On the other hand, the only person from DCA Trust who submitted a witness statement, Ms. Sophia Bekele, is willing and available to testify either in person, or via video conference before the IRP Panel.

Final!  Tribunal orders all witnesses to show up!

Based on the above, the Panel requires all three witnesses in this IRP to be physically present at the hearing in Washington, D.C. If a witness fails to appear at the hearing without a valid reason acceptable to the Panel, the Panel shall in its sole discretion draw the necessary inferences and reach appropriate conclusions regarding that witness’s Declaration.   Additionally, Based on the above, the Panel requires all three witnesses in this IRP to answer viva voce any questions the Panel may have for them, and  thereafter, answer any follow up questions that counsel for the Parties may have for them in respect to the questions asked by the Panel.

The latest declaration sets in course the procedures of the final hearing that is scheduled to make a final decision on the IRP that was filed against ICANN as respondent, following DotConnectAfrica Trust’s decision to institute an IRP suit at the ICDR to challenge ICANN NGPC Board actions over the .Africa new gTLD application of DCA Trust.

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