“We stand by our position that UniForum has not engaged with ‘clean hands’ over the issue of .Africa. Accepting a GAC Objection Advice against DCA’s application will be against the canons of equity and justice.”
ICANN 46 held from 7-11 April 2013 in Beijing China saw the most anticipated process of the new gTLD process that is vetting over 1000 applied for top level domains that are set to forever change and expand the existing namespace.
GAC advice according to the Applicant Guide Book is intended to give ICANN advice concerning various applications that it feels need further scrutiny. ICANN officially notified applicants of the publication of GAC Advice on April 18, 2013, triggering the 21-day applicant response period per the Applicant Guidebook Module 3.1. Much as ICANN GAC’s advice is regarded as important, several issues have been widely leveled as to the extent of GAC’s mandate and if at all its advice would act as a kill switch to applicants who invested over 185,000 USD.
DotConnectAfrica who is one such applicant has responded quite widely to the GAC advice in its 15 paged response that implored ICANN Board not to consider the advice. The Board New gTLD Committee, acting on behalf of the full Board, will now consider how to address the GAC Advice.
DotConnectAfrica raised issues that pertain the facts that implored ICANN to allow their application to continue with the ICANN process. Some of the matters highlighted include the organization being the Earliest recipient of Endorsements. The response reads
“We again would like to reassure the entire ICANN Global Community and Governments that are represented at ICANN that DCA Trust has no problems with the African Union Commission. We know about government support which explains why DCA Trust went to the AUC and UNECA as early as 2008 and 2009 to respectfully request for it and we are proud to say that the endorsements to support our initiative, which were sought on the basis of direct formal requests presented to the organizations, were freely granted by the respective inter-governmental -cum-diplomatic authorities”
The endorsement issue has been easily the biggest impediment and embarrassment to the Africa Union who gave its endorsement in 2009 but in unclear circumstances that DotConnectAfrica has often asked that they be investigated. They also opine that “The evaluation of our new gTLD application should not be prejudiced in any way. If we pass the Initial Evaluation, we shall present this as ample proof of the viability of our application to enable us go back to the African Union Commission to discuss and negotiate under mutual and cooperative terms.”
The response also strived to expose and equally emphasize the fact that the competitor Uniforum actually lied to the continent as well as its partner.
“……somehow more valid than the .Africa application that was submitted by DCA Trust because they managed to contrive questionable AU support; but even so, reneging on the terms of their AU endorsement by submitting a fraudulent application which did not acknowledge an African Community in it. “Anyone coming to equity must come with clean hands”, and continues to state that “We stand by our position that UniForum has not engaged with ‘clean hands’ over the issue of .Africa. Accepting a GAC Objection Advice against DCA’s application will be against the canons of equity and justice.”
To further buttress their point on equity and fraud, they cited a famous case
‘An Economic analysis of Law versus Equity’, October 22, 2010, available at: http://www.law.yale.edu/documents/pdf/LEO/HSmith_LawVersusEquity7.pdf Ibid. Harvard Law School Professor Henry Smith believes fraud “is a knowing misrepresentation that is intended to induce another to part with an entitlement and that succeeds in doing so”, and that “legally, fraud is narrowly defined but there is a larger set of misrepresentations that have an effect similar to fraud.” The key word here is ‘misrepresentation’ by which, as we have always maintained, UniForum ZA Central Registry misrepresented their application by claiming to have the support of an ‘African Community’ that it was endorsed to apply on its behalf, but deliberately failing to acknowledge the same community in its application as per its official answers to ICANN Evaluation Criteria questions regarding a Community relationship.
DCA also indicated quite clearly that as a matter of “consequence, we do not accept that the prospects for a due process Congressional Investigation should be forestalled by a ‘misadvised’ GAC Objection Advice.” Having written to the USA congress to appoint a new Independent Ombudsman to oversee the process, DCA continues that
“in the absence of any official Accountability Hearing on the issues that we have raised and reported as our grievances against UniForum ZA Central Registry, the implementation of any policy action against DCA’s application by the ICANN Board would be absolutely unlawful.”