By: Robin D. Gross
In an important test of ICANN’s primary accountability mechanism, its Independent Review Process (IRP), the organization has been handed a stinging blow over its mishandling of the bid for the new generic Top-Level Domain (gTLD) .AFRICA.
At the crux of the issue are two competing applications for the .AFRICA new gTLD and the decision by ICANN’s Board to abdicate its responsibility to ensure that ICANN’s evaluation and subsequent rewarding of the domain was carried out fairly, transparently, and in accordance with the organization’s Bylaws, Articles of Organization, and established policies.
The unanimous IRP Panel of 3 distinguished adjudicators declared that both the actions and inactions of ICANN’s Board with respect to the application of DotConnect Africa Trust for the .AFRICA gTLD were inconsistent with ICANN’s Articles of Incorporation and Bylaws. The Panel found that both ICANN’s Board, and its constituent body, the GAC, breached their obligations to act transparently and in conformity with procedures that ensured fairness.
As a result, the Panel recommended 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. Although the award did not include reimbursing DCA Trust’s legal fees and expenses, ICANN was found to be liable for bearing all the costs of the IRP and the totality of the costs of the IRP provider, more than U.S. $400,000.
Several days after the Panel’s unanimous declaration, the ICANN Board of Directors met on 16 July 2015 and decided to accept the Panel’s finding and place DCA Trust’s application back in the evaluation process. Given the growing pressure on ICANN to accept meaningful accountability reform, including an independent IRP that is truly capable of correcting the organization’s mistakes, the Board had little choice but to accept the Panel’s recommendation.
The Panel noted that the IRP is the only independent third-party process that allows review of board actions to ensure their consistency with the Articles of Incorporation and Bylaws. Furthermore ICANN requires all new gTLD applicants to relinquish all their rights to seek redress against ICANN in courts of law for any harm caused by ICANN or any misconduct by ICANN.
Accountability requires that an organization explain or give reasons for its activities, accept responsibility for them, and disclose the results in a transparent manner. Not only did ICANN fail to provide a rationale for denying DCA Trust’s application, it did not even require that a reason be provided before killing the application that ICANN was paid $185,000 to evaluate fairly. Neither principles of equity nor ICANN’s corporate Bylaws and Articles would allow that decision to stand unchallenged.
ICANN’s Board Violated Its Obligations of Due Diligence and Fairness
After ICANN’s Governmental Advisory Committee (GAC) issued “consensus advice” objecting to DCA Trust’s application, ICANN’s Board summarily awarded the .AFRICA domain to the African Union Commission, DCA Trust’s competitor. When DCA Trust filed for a reconsideration of that Board decision based on irregularities and non-transparency of the GAC decision making process and also based on allegations of staff misconduct discriminating against DCA Trust, the reconsideration request was also dismissed out of hand by ICANN’s Board.
However ICANN’s Bylaws require the organization’s Board and its internal constituent bodies to operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.
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