Tandaabiashara

DotConnectAfrica won an injunction when the Independent Review Panel ruled yesterday that ICANN should not carry on processing .africa until it has ruled on a complaint filed. This will allow the Panel time to consider arguments from DotConnectAfrica Trust (DCA Trust) and ICANN on DCA Trust’s claims regarding the .AFRICA TLD.

The win stems from the fact that DCA received an Injunction it requested in its IRP Proceedings in an arbitration process against ICANN (‘DCA Trust vs. ICANN’) governed by the International Dispute Resolution Procedures of the ICDR based in New York and the Supplementary Procedures for ICANN IRP Process.

The Notice of IRP came after DCA’s dotAfrica application was not allowed to complete processing to the end of Independent Evaluation (IE) by ICANN as a result of GAC Objection, which DCA stated was “unfair, discriminatory, and lacked appropriate due diligence and care” as well as “anti-competitive”.

In the 13-page presentation, the International Tribunal assembled for the case ruled that DCA has a right to being protected from any impending delegation of “.africa.”

Among other things, the Panel says that:

 “After having carefully read DCA Trust’s written submissions and the responses filed by ICANN, and after listening to the parties’ respective oral presentations made by telephone on 5 May 2014, for reasons set forth below, the panel is unanimously of the view that a stay ruling in the form described below is in order in this proceeding and that ICANN must  immediately refrain from any further processing of any application for .africa until this Panel has heard the merits of DCA’s Trust Notice of Independent Review Process and issued its final decision regarding the same.”

The Ruling further weighs in:

 “First, the Panel is of the view that this IRP could have been heard and finally decided without the need for interim relief, but for ICANN’s failure to follow its own bylaws (Article IV, section 3, paragraph 6) and Supplemental Procedures (Article 1), which require the creation of a standing panel.”

“In the Panel’s unanimous view, it would be unfair and unjust to deny DCA Trusts request for interim relief when the need for such a relief by DCA Trust arises out of ICANN’s failure to follow its own bylaws and procedures,” it states, further conceding that: “DCA Trust has demonstrated, to the satisfaction of this Panel that, beyond the procedural rights it must enjoy to have its case heard, DCA trust also enjoys according to ICANN’s own bylaws the right to have ICANN’s  Boeard decision reviewed by an Independent panel, a right which will be lost if an interim relief is not granted in this case.”

DCA had argued that four criteria must be satisfied before the interim relief is granted under international law and international proceedings. The criteria are urgency, necessity,protection of an existing right, and existence of a prima facie case on the merits, without the necessity of prejudicing that matter.

ICANN had in March 24 2014 proceeded to sign a contract with ZACR who are competitors for the “.africa” string, sparking an outrage that ICANN was continually mistreating DCA Trust.

“The IRP is a proceeding provided for in Article IV, Section 3 of the ICANN Bylaws, by which any person materially affected by a decision or action of the ICANN Board may request that the action be reviewed by an independent third party for consistency with the ICANN Bylaws and/or Articles of Incorporation.

DCA is represented by an international law firm Weil, Gotshal & Manges LLP based in New York while ICANN is represented by a Los Angeles-based Law Firm Jones Day LLC, which has been working with ICANN nearly since its inception.

This latest Panel decision means that the fight for the “.africa” domain is still open and can go either way. Read further reporing here