DCA has won yet another IRP duel after the Panel ruled in favor of its own arguments. The Panel arbitrating the DCA Trust vs. ICANN IRP has declared that;
“After deliberation and careful consideration by all three Panel member o the Parties respective submissions and supporting authorities, the Panel is unanimously of the view that it is not necessary for it to reconsider or revisit its 2014 declaration”
ICANN had in 26th February 2015 requested that:
“Following the replacement of the Hon. Richard C. Neil (now deceased), and In Conjunction with the upcoming hearing of this matter, ICANN requests that this Panel consider revisiting the part of this IRP relating to the issue of hearing witnesses addressed in the Panels Declaration on the IRP Procedure of August 2014 (2014 Declaration). In that same letter, ICANN advices in a footnote that it may in the future ‘request that the reconstituted Panel address the issue of whether an IRP Declaration procedure is advisory or binding.”
The IRP panel seemed to have agreed with DCA who had countered ICANN’s requests In a March 5 2014 letter to the panel by arguing instead that:
“Absent some sort of impropriety on the part of the arbitrator who was replaced that can be remedied by the substitute arbitrator, there is no rationale under Article 11.(2) to reconsider final decisions. ICANN has not suggested any sort of impropriety on the part of Justice Neal. It is simply dissatisfied with what was decided by all of the members of the Panel that included Justice Neal and is now opportunistically seeking to revisit the procedural framework that was put in place in a detailed reasoned decision based on extensive written and oral submissions by the parties.”
ICANN also attempted to bolster its arguments by craftily introducing the most recent 3 March 3015 IRP Booking.com decision that it had won by informing the panel: “that IRP was resolved without any witness testimony” and “the final argument of the counsel was two and half hours by conference call”
To which the panel categorically dismissed by stating that:
“Finally and without venturing at this stage into any detailed analysis concerning the Booking.Com final declaration, the panel is of the view that the facts of that case are different and distinguishable from this IRP, and therefore, at least on the hearing of the fact witnesses’ issue before this Panel, the Booking.com final declaration is on no consequence.”
This ruling becomes that 3rd since DCA Trust first submitted an Amended Notice of Independent Review Process (“IRP”) on Jan. 10, 2014 to the International Center for Dispute Resolution (ICDR). DCA Trust sent its Notice of IRP in October 2013. This is 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.
On 12 March 2014, the Panel granted an Interim Relief for DotConnectAfrica that ICANN should hold off from further processing of ZA Central Registry’s (ZACR) application for the .AFRICA top-level domain (TLD) for the time being. After the ruling, the Panel gave a decision accepting DotConnectAfrica’s position on the procedural framework of the IRP proceedings and also ruled that its determination is binding on ICANN.
The Panel’s declaration strongly justifies DCA’s stated position that “ICANN was opportunistically seeking to revisit the agreed procedural framework” that was already agreed between the parties.
It seems that the IRP Panel was not happy with ICANN for trying to employ the strategy of overturning the previous decisions that went against ICANN by taking advantage of the fact that there is now a new Panel member.
This is yet another important interim ruling that was not in favor of ICANN, and which portentously points to an eventual loss for the organization when the final declaration is made by the IRP Panel.
Find more about the DCA Vs ICANN IRP on these extra links