Thank you Robin for this excellent commentary. Best Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 22 Jul 2015, at 1:43, Robin Gross wrote: > Hi all, > > I recently wrote this analysis of the .africa Independent Review Panel > (IRP) Declaration, which has implications for other gtlds that may > have been similarly denied. > > Thanks, > Robin > > http://www.ipjustice.org/internet-governance/icann-accountability-deficits-revealed-in-panel-ruling-on-africa/ > > ICANN Accountability Deficits Revealed in Panel Ruling on .AFRICA > > “Fortress ICANN” No Longer Able to Shield Itself from > Accountability > > 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. > > Due diligence required a conversation with the GAC about its > objection, even where the advice was consensus advice. But ICANN’s > Board was found to give undue deference to the GAC objection and > failed to investigate the basis for the decision, even though it is > consensus advice. > > This IRP declaration is important because it implies the board can no > longer passively accept GAC consensus advice to object to a new gTLD > application (or anything else) without conducting adequate diligence > into the decision making process and exercising independent judgment > of its own. ICANN’s Board cannot hide behind murky “GAC > objections” to block applications given the Board’s affirmative > duties of due diligence and fairness in carrying out its activities. > > What this ruling reveals is that GAC has been granted too much > autonomy in ICANN’s decision making process given the Board’s > ultimate responsibility for GAC as a “constituent body” of ICANN. > But ICANN’s Board has no involvement in, much less control over, > whether the GAC grants to any party voting membership status; that > decision remains within the sole discretion of the GAC. Thus, although > the Board is legally responsible for the decisions, GAC holds a > growing power over those decisions, but bears no legal responsibility > for them. > > ICANN’s board failed to conduct due diligence and investigate if the > organization’s constituent bodies, the GAC in particular, were > operating in a manner of openness, transparency, and fairness. > > Because the board did not investigate allegations of inappropriate > staff conduct after being put on notice of discriminatory actions, it > was found to have violated the organization’s Bylaws’ obligation > to exercise appropriate care and diligence in carrying out its duties > and activities. By failing to apply ICANN procedures in a neutral and > objective manner with procedural fairness, ICANN breached its Articles > and Bylaws. > > ICANN’s Board Gave Improper Deference to Unaccountable Government > Advisory Committee > > The Guidebook lists three specific reasons why GAC could issue a > consensus objection to a gTLD application, yet upon investigation, the > IRP Panel uncovered that GAC is not constrained in any manner, and in > operation, it can object to a domain name application for any reason > or for no reason at all. > > The Panel noted that GAC’s own witness, its former Chair, Heather > Dryden, admitted during the IRP hearing that GAC did not act with > transparency nor in a manner designed to ensure fairness. > > In her testimony, GAC’s former Chair explained that, “there > isn’t GAC agreement about what the rights are” of the contending > parties, and that “not all countries have a shared view about what > those entities … should be able to do.” Dryden went on to explain, > “because that would only get clarified if there is a circumstance > where that link is forced. In our business we talk about creative > ambiguity. We leave things unclear so we don’t have conflict.” > > Ms. Dryden also stated that the GAC made its decision without > providing any rationale and primarily based on politics rather than on > potential violations of national laws and sensitivities. Indeed she > testified that GAC is not required to provide any rationale with its > consensus objections. > > Testimony from its former Chair at an IRP hearing was shockingly > illuminating on how GAC reaches decisions: > > Arbitrator Kessedjian: > So, basically you’re telling us that the GAC take a decision to > object to an applicant, and no reasons, no rationale, no discussion of > the concepts that are in the rules? > > The Witness: > I’m telling you the GAC did not provide a rationale. And that was > not a requirement for issuing a GAC – > > Honorable Judge Cahill: > But you are also want to check to see if the countries are following > the right – following the rules, if there are reasons for rejecting > this or it falls within the three things that my colleague’s talking > about. > > The Witness: > The practice among governments is that governments can express their > view, whatever it may be. And so there’s a[…] deference to that. > That’s certainly the case here as well. The – if a country tells > – tells the GAC or says it has a concern, that not really something > that – that’s evaluated, in the sense you mean, by the other > governments. That’s not the way governments work with each other.” > > Honorable Judge Cahill: > So you don’t go into the reasons at all with them? > > The Witness: > To the issue of consensus objection, no. > > But the Panel was unimpressed with such a sloppy decision making > process, particularly given ICANN’s duty to act the public interest > and to obey its own Bylaws. According to the Panel: > > “ICANN was bound by its Bylaws to conduct adequate diligence to > ensure that it was applying its procedures fairly. Section 1 of > Article III of ICANN’s Bylaws, 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.” > > Thus ICANN Board was legally required to conduct a meaningful review > of its previous decision to accept the GAC objection advice and it did > not. The Panel declared, “[I]n light of the clear ‘Transparency’ > obligation provisions found in ICANN’s Bylaws, the Panel would have > expected the ICANN Board to, at a minimum, investigate the matter > further before rejecting DCA Trust’s application.” The Panel said > it would have had a similar expectation with respect to the Board’s > response to the GAC consensus objection. > > Instead of investigating the conflict or providing a meaningful > reconsideration of its prior decision, the Board simply accepted the > GAC objection as if it were definitive on the matter, rather than an > input to consider. The law does not allow ICANN’s Board to abdicate > its responsibility to govern ICANN to the GAC; nor may it violate its > Bylaws’ obligations to conduct ICANN’s affairs with fairness and > transparency, simply because GAC desires a specific policy objective. > > ICANN’s claim that “the Guidebook explicitly states that Early > Warnings may be issued for any reason” did not hold much sway with > the Panel, which declared that ICANN must follow rules, notably its > Bylaws and Articles, which require transparency and fairness in the > administration of its duties. > > At the 16 July special Board meeting, ICANN’s Board stated it would > ask the GAC if it wishes to refine its consensus advice to object to > DCA Trust’s application, provide further information regarding that > advice, or otherwise address the concerns raised in the Panel’s > declaration regarding GAC. The continued development and impact of GAC > advice on ICANN’s decision-making process is particularly worth > watching going forward. > > ICANN Staff’s Various Attempts to Impede IRP Accountability > > The Panel noted a number of times throughout the lengthy IRP process > when ICANN staff attempted to reduce the ability of the Panel to > provide meaningful accountability. Just as ICANN’s Cross Community > Working Group on Accountability begins to examine “ICANN staff > accountability” in the overall accountability framework of the > organization, the Panel’s declaration is all too illuminating on the > significant hurdles one must traverse when trying to hold ICANN > accountable for its actions. At every turn, ICANN staff, particularly > its lawyers, attempted to erect barriers in the process that would > insulate the organization from responsibility and render the IRP > impotent. > > “The Panel is also of the view that any attempt by ICANN in this > case to prevent it from carrying out its independent review of > ICANN’s Board’s actions in the manner that the Panel considers > appropriate under the circumstances deprives the accountability and > review process set out in the Bylaws of any meaning.” > > Some examples that came out during the proceedings: > > ICANN claimed the Panel could not examine witnesses. The Panel decided > otherwise and noted that both ICANN’s Bylaws and the Supplementary > Rules require an IRP Panel to examine and decide whether the board has > acted consistently with it obligations. Without the ability to examine > witnesses and test the veracity of their claims, the Panel would be > unable to ensure that the parties to an IRP are treated with equity > and given a fair opportunity to present their case. > > ICANN claimed the Panel could not suggest a remedy if violations were > found. The Panel disagreed with ICANN’s claim because if the IRP > mechanism is intended to provide a remedy for a claimant materially > injured or harmed by Board action or inaction, then naturally the IRP > Panel may recommend how the ICANN Board might fashion a remedy to > redress such injury or harm. > > ICANN claimed the Panel’s standard of review was to be > “deferential” to the board of directors, rather than a de novo > standard, which is an objective and independent one, examining whether > the Board acted or failed to act in a manner inconsistent with > ICANN’s Articles or Bylaws. The Panel declared that the IRP was > specifically designed and set up to offer the Internet community, a de > novo standard of review that would ensure that ICANN acted in a manner > consistent with its Articles and Bylaws. > > ICANN claimed that an IRP was not permitted to address whether the GAC > did anything inappropriate and could only consider Board actions or > inactions. The Panel, however, noted that GAC was clearly a > constituent body of ICANN and was therefore required to act > transparently and in a neutral and objective manner and that it was > empowered to examine that conduct. > > Astonishingly, before publishing the Panel’s declaration, ICANN > redacted key text from the declaration in at least 39 separate places > to further hide its misdeeds. According to sources who have seen the > un-redacted ruling, the deleted text primarily discusses specific > instances of ICANN staff misconduct including ICANN’s senior > management’s drafting of the letter which it then relied upon to > provide the winning bid for .AFRICA to DCA Trust’s competitor. There > appear to be redactions also of the GAC former chair’s testimony > explaining how “the political process” at ICANN works. > > Clearly it is inappropriate for ICANN to abuse its position in the > publication of the IRP declaration to censor instances of ICANN staff > misconduct and GAC unaccountability from public view. As the redacted > declaration is already significantly damning with respect to revealing > ICANN accountability failures, it begs the question as to just how > much more unflattering the redacted text must be. Even after ICANN was > severely rebuked by the Panel in its ruling for its many instances of > inappropriate conduct in this matter, ICANN continued with its usual > practice of hiding the extent of its misconduct from the public it > allegedly serves. A new culture of transparency in every aspect of key > decisions must take root at ICANN before the organization can be given > any greater responsibility to serve the public, rather than not > itself. > > The Panel stated that, “ICANN is not an ordinary California > nonprofit organization. Rather it has a large international purpose > and responsibility to coordinate and ensure the stable and secure > operation of the Internet’s unique identifier systems.” > > Important Precedent Over-Turning “Presumption” that GAC Advice > Must be Obeyed > > This ruling is significant in many respects, including demonstrating > the absolute necessity of having an IRP that is truly independent of > ICANN’s Board and staff. Managing the Internet’s domain name > system requires a level of competence and trustworthiness to the > public interest that ICANN has not yet shown itself mature enough to > undertake without an independent adjudicator of ICANN’s actions. > > This ruling could also have important precedential value for the many > other new gTLDs, which have also been negatively impacted by GAC > advice or objections that may not comport with ICANN’s legal > obligations to follow rules in a fair, transparent, and objective > manner after conducting due diligence. > > The “presumption” that GAC consensus objections to new domains > shall be obeyed by ICANN’s Board has been solidly overturned by the > Panel since neither the Board, nor the GAC itself have required the > GAC to follow rules or process, to operate fairly, or even state > reasons to objections that can be addressed. > > Furthermore, the Board may not abdicate its responsibility and hide > behind GAC decisions without undertaking its own independent inquiry > and exercising its own judgment as to whether proper process and > appropriate decisions were taken. The light shown on the > non-transparent and lawless nature of ICANN’s GAC calls the actions > and structure of the entire organization into question. > > ICANN cannot promise the world transparency, fairness, due diligence, > and objectivity in its exercise of these important responsibilities at > the same time that it does not require those qualities of its > constituent bodies, including GAC, the Board, and ICANN’s staff. > Another important consideration from this ruling is the tremendous > cost and time that one must invest to try to hold ICANN accountable. > DCA Trust could have easily spent a million dollars to bring this > action to completion in lawyers’ fees, panelists’ fees, and other > expenses. New gTLD applicants are required to waive all their rights > to legal enforcement by courts of law, so the IRP is the only > independent mechanism available to those harmed by ICANN, and one must > be prepared to spend millions of U.S. Dollars in order to have their > rights enforced. Not exactly a mechanism that is accessible for 99% of > the world’s population, despite ICANN’s global impact and claim of > public service. In any event, the .AFRICA is among the most important > and precedential IRP declarations ICANN has ever received. > > ICANN Staff Redactions: > > By Robin Gross|July 16th, 2015|Internet Governance, Publications