Breaking: DotConnectAfrica Trust victorious on its challenge of ICANN Board over .africa

DotConnectAfrica Wins ICANN IRPIn a landmark ruling announced on Thursday, 9 July 2015, Independent Review Process (IRP) facilitated by the International Center for Dispute Resolution (ICDR) declared that DotConnectAfrica Trust was the prevailing party in the two year case was commenced after a suit that was filed by DCA Trust in October 2013 to challenge an ICANN Board decision.

The international IRP Panel comprised of Arbitration experts, Mr. Babak Barin (President of Panel), a leading Commercial Arbitration Expert from Canada and a member of the London Court of International Arbitration (LCIA); Prof. (Dr.) Catherine Kessedjian, an International Dispute Resolution Specialist and Professor of Law at the University of Panthéon-Assas, Paris, France; and the Honorable Judge William J. Cahill, a retired San Francisco Superior Court Judge.

The panel also declared that ICANN will be responsible for bearing the costs of this IRP and the cost of the IRP Provider in Full.

The 63 paged final ruling comes as a closure of the case which hs seen DCA the applicant for.Africa prevail in al the stages of the IRP process which included successfully stopping the process of delegating the .Africa gTLD after ICANN was accused of hurriedly signing a contract with the other contender of .Africa ZACR despite an on-going case at the IRP.

Here is the summary on page 18

Summary of Panel’s Decision

  • For reasons explained in more detail below, and pursuant to Article IV, Section 3, paragraph 11 (c) of ICANN’s Bylaws, the Panel declares that both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.
  • Furthermore, pursuant to Article IV, Section 3, paragraph 11 (d) of  ICANN’s Bylaws, the Panel recommends 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.
  • Finally, DCA Trust is the prevailing party in this IRP and ICANN is responsible for bearing, pursuant to Article IV, Section 3, paragraph 18 of the Bylaws, Article 11 of Supplementary Procedures and Article 31 of the ICDR Rules, the totality of the costs of this IRP and the totality of the costs of the IRP Provider.
  • As per the last sentence of Article IV, Section 3, paragraph 18 of the Bylaws, DCA Trust and ICANN shall each bear their own expenses. The Parties shall also each bear their own legal representation fees.

Speaking after the ruling Ethiopian born Entrepreneur Sophia Bekele CEO/Founder of DCA Trust said

“We are very thankful to the IRP Panel for vindicating our position on .Africa. We have always believed that ICANN treated DCA unfairly and committed many serious violations and wrongdoings against DCA’s .Africa new gTLD application. We understand that the IRP Panel has recommended that ICANN should 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.

We expect ICANN to fully redress and compensate DCA Trust for all the harm and many injuries that have been directly caused by these apparent violations of the ICANN Bylaws and Articles of Incorporation by the ICANN Board.

The .Africa Internet domain name is for the benefit of the people of the African continent whom we have been fighting for since 2008 to enable them have the .Africa Internet domain extension just like the people of Asia have the .Asia domain.

This is a great day for accountability, transparency, justice, fairness, probity and ethical global Internet governance. During the IRP, DotConnectAfrica Trust clearly established three key points:

  1. ZA Central Registry lacked any valid endorsements for the .Africa string that it applied for; and

  2. the purported Governmental Advisory Committee Objection Advice against our .Africa was not by consensus application; and

  3. the ICANN Board had seriously erred in accepting the GAC Advice

GAC was identified to be the greatest impediment to the transparency and accountability which was required in the IRP after the Key Witness Ms. Heather Dryden stated that GAC “….talk about creative ambiguity. We leave things unclear so we don’t have conflict.”

When pressed further if the GAC takes a decision to object an applicant with no reasons, or rationale, in the rules, Ms Dryden stated that

“GAC did not provide a rationale. And that was not a requirement for issuing a GAC”

The Board was also faulted for taking the GAC’s objection recommendations without taking due diligence.

In excerpt 105 of the ruling, the panel recalled the ICANN’s Bylaws which require it and its constituent bodies to “operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness. The Board must also as per Article IV, Section 3, Paragraph 4 exercise due diligence and care in having a reasonable amount of facts in front of it.

The New gTLD Program Committee (NGPC) of the ICANN Board accepted the ruling without proper deliberations. In excerpt 108 the Pane states that the NGPC was not bound by – nor was it required to give deference to – the decision of the Board Governance Commiteee

The ruling that has set a precedent in the new gTLD process of 2012 has the greatest potential of opening up the cases of other applicants who have been affected by the GAC objections. There are about 11 new gTLD cases in the IRP.

The case has the potential of blocking the chances of the IANA Transition that ICANN has been pushing. This is mainly because of the major transparency and accountability dysfunction that exists in the GAC and ICANN as a whole. This is also likely to attract a major probe by the Congress who have been hotly pursuing the .Amazon case.

DotConnectAfrica Trust was represented in the IRP proceedings by the Washington-based law firm Weil Gotshal & Manges LLP, with Mr. Arif Ali as lead counsel; while ICANN’s lead was Mr. Jeffrey LeVee of Jones Day law firm, Los Angeles.