A public discussion of the outcome of the first ICANN IRP ruling of the new gTLD process has found its way to the Cross-Community Working Group as one of the current topics on Enhancing ICANN Accountability. Whereas the entire ICANN community appears to work towards ways to improve the ICANN accountability mechanism some members from the African community seem not to be interested in accountability and appear to be looking at other ways to possibly fast track the .africa new gTLD so as to help them side-track what they see as ‘procedural delays’ of an IRP accountability process.
The brief history about the Booking.com Vs ICANN IRP concerns the String Similarity Panel decision on the dot-hotels application with another applied-for string .hoteis which caused Booking.Com to seek the IRP Panel’s to adjudicate on the accountability of the ICANN decision regarding the .hotels string, asking them to intervene in the matter through an arbitral (independent review) juridical process.
Booking.com did not prevail in the IRP, not because it had no case, but probably because of the way the IRP request was presented, as well articulated by Bekele on circleID. An IRP can only be filed to show that an ICANN Board or ICANN Staff action has violated ICANN’s By-laws or its Articles of Incorporation. Just disagreeing with a decision made by ICANN is often not a sufficient basis to challenge such decisions through an IRP proceeding.
The case also exposed intrinsic shortcomings of the system with the panelist raising concern that “There is no question but that process lacks certain elements of transparency and certain practices that are widely associated with requirements of fairness”.
The panel also stated that
“We can – and we do – acknowledge certain legitimate concerns regarding the string similarity review process raised by Booking.com, discussed above, which are evidently shared by a number of prominent and experienced ICANN NGPC members. And we can, and do, encourage ICANN to consider whether it wishes to address these issues in an appropriate manner and forum.”
As such the ruling found itself among the discussion in the CCWG-ACCT mailing list under the topic “Declaration issued in the Booking.com v ICANN IRP”, some members indicated differing opinion as to whether the ICANN accountability mechanisms are fair, this is despite others asking if it was the appropriate forum to discuss the issue.
Kieren McCarthy says “My take away is what I believe many of us are already aware of: that the current accountability systems are designed to support whatever decision is made by the staff and Board, irrespective of whether that is a good decision or not.” Avri Doria asks “but would ICANN’s customers be better off if the contracts, application forms &c. did not include an agreement baring resort to the courts?” Phil Corwin adds that “It is also significant in that the panel actually shares a lot of the concerns expressed by the challenging party, but was powerless to do anything because of the extremely limited mandate of the IRP. This again demonstrates the significance of the changes that were put in by the icann staff and board “in the middle of the night” after the ICM decision when few people other than the registries were paying attention (and ignored)…This accountability group must put back in place reasonable mechanisms that do not leave impacted parties powerless to get relief especially where a panel, like the one here, shares the concerns expressed by the challenger.” In response, the ICANN Ombudsman said “The important issue arising is in 2 parts. Accountability and a general sense is already being fully discussed. However the more difficult issue is designing a dispute resolution system which has the flexibility to discuss the issues graphically illustrated by this case.”
The African Response:
A member of the African community representing AUC Alice Munyua in a contrarian view to the community approach said “There is a need to avoid legitimate public policy, commercial and technical objectives, for example from new gTLD applicants in underserved regions, being frustrated by lengthy procedural delays through no fault of those trying to achieve them”. Munyua apparently believes that ‘public policy’ is more important than ethical/legal accountability, and that when it comes to under-served regions (read ‘Africa’), a different ‘set of considerations’ should apply.
Munyua also tried to disparage the DCA vs. ICANN IRP over .Africa by calling it ‘dysfunctional’ because the expected time for IRP decisions to be made, has been exceeded. She even resorted to a thinly veiled threat of blackmail by insinuating that if ICANN loses the IRP, then a case should be brought against the provider of the IRP dispute resolution service.
This triggers a notion that either Africans do not want ICANN to be bound by any arbitration process, or do not understand the process. These comments are similar to those made during the London ICANN meeting when another African representative conveyed a rather authoritarian stance that seemed not only tyrannical and undemocratic, but is also quite opposed to the multi-stakeholder philosophy of the global community when he said the following in a very dictatorial tone:
“ But I think it is time for me to express also the African and African Union Commission’s frustration with regard to the domain name .AFRICA. And then we get into this process which we haven’t understood yet and would love to understand. But what I would like to see here is the accreditation of .AFRICA was based on a decision of the board following a recommendation from the GAC” and further that “The issue of .AFRICA is making Africans so frustrated that at any point of time any decision for the future that would be taken or anything else could be ‐‐ could not get the African support.
Instead of resorting to blackmail and threatening that any decision that goes against them regarding .Africa will not be supported, a sincere effort should be collectively made by these African representatives to enable them gain the necessary knowledge that will help them address whatever shortcomings that they might have regarding the new gTLDs procedures. These types of views that have been expressed have revealed serious systemic weaknesses regarding their understanding of accountability processes.
As another member of the mailing list suggested that CCWG should not get involved in any specific string, but should rather concentrate on the nature of the complaint and address that as a principle in its finding ” to which Marylin Cade concurred
“In my view, examining how existing accountability mechanisms are working is useful to the WG, without taking up specific cases.”
ICANN processes may be the subject of public discussions for a very long time but until proper grounds of seeking redress and accountability policies have been created, it will be difficult to offer applicants justice. This further justifies any specific recommendation that calls for ICANN to allow more external accountability mechanisms and court processes.
Finally, the applicant path for redress has shown that there needs to be proposed new avenues for accountability and redress before another new gTLD process can be run, and even more importantly before ICANN is allowed to achieve a complete take over of the IANA functions. Any processes that are currently ongoing which aim to improve ICANN’s accountability as supported by US Senators should be sufficiently robust to ensure proper justice for any parties that wish to challenge ICANN board or ICANN Staff decisions.