14 July 2015

East Africa: DCA Trust Wins .Africa IRP, ICANN to Pay Over Kshs 60 Million in Costs

DotConnectAfrica (DCA) Trust has won a landmark decision following the conclusion of an Independent Review Process (IRP) at the International Center for Dispute Resolution (ICDR) which ruled that the Internet Corporation for Assigned Names and Numbers (ICANN) violated its Bylaws and Articles of Incorporation.

The IRP suit was filed by DCA Trust in October 2013 to challenge an ICANN Board decision at the American Arbitration Association (AAA), New York, USA. The DCA vs. ICANN IRP decision was issued in Los Angeles, California, on Thursday, July 9, 2015.

An IRP is an alternate dispute resolution (ADR) juridical mechanism that empowers an Independent Panel of Jurists, acting as a third-party, to engage in a detailed, procedure-based accountability review process. The standard of adjudication, legal and policy review required in an IRP is very high, since the complainant, who is materially affected by the ICANN Board action or decision, has to prove that certain actions that have been taken by ICANN have violated the Bylaws and Articles of Incorporation of the organization.

In deciding the IRP, the Panel has to compare the contested actions (or inactions) of the ICANN Board against the existing stipulations laid down in the Bylaws or Articles of Incorporation of ICANN by focusing on a pre-defined standard of review; and to rule whether such actions or inactions were wrongful and had indeed violated the Bylaws and Articles of Incorporation.

In its 63-page ruling, which is published here, the IRP Panel declared DCA Trust to be the "prevailing party in the IRP" and ordered that ICANN is to "bear the totality of the costs of this IRP and the totality of the costs of the IRP Provider."

The costs to be paid by ICANN include the fees and expenses of the panelists; the fees and expenses of the administrator, the ICDR; the fees and expenses of the emergency panelist incurred in connection with the application for interim emergency relief sought pursuant to the Supplementary Procedures and the ICDR Rules and the fees and expenses of the reporter associated with the hearing on May 22 - 23, 2015 in Washington, DC.

"As a result of the above, the administrative fees of the ICDR totaling US $4,600 and the Panelists' compensation and expenses totaling US $403,467.08 shall be born entirely by ICANN, therefore, ICANN shall reimburse DCA Trust the sum of US $198,046.04," stated the 3-member IRP panel.

The IRP Panel comprised of Mr Babak Barin (President of Panel), a Commercial Arbitration Expert from Canada and a member of the London Court of International Arbitration (LCIA); Professor (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.

From the ruling, which is binding on both parties with no avenue for appeal, ICANN is set to foot the bill of the IRP process which is in excess of US $ 606,114 (about Kshs 60.6 million). This excludes each party's individual cost as the panel ruled that DCA and ICANN should bear their own expenses.

DotConnectAfrica Trust is a Mauritius-based charitable organization with an Internet registry service subsidiary - DCA Registry Services Ltd - in Nairobi, Kenya. DCA Trust had instituted an IRP suit against ICANN to challenge an ICANN Board decision that had been taken in June 2013 to deny DCA's application for the .Africa new generic top-level domain (gTLD) name. This followed DCA Trust's application for the .Africa name under the Global Internet Expansion Program of ICANN that was launched in 2012 to introduce new generic domain names.

ICANN is the global, California-based non-profit that administers the unique system of Internet names, numbers, addresses and protocol parameters that underpin the technical architecture of the Internet Domain Name System (DNS). Since it was founded in 1998, ICANN has regularly overseen the Internet Assigned Names Authority (IANA) contract under the supervision of the United States National Technology & Information Administration (NTIA) - an executive agency of the US Department of Commerce.

After thorough deliberation, the IRP Panel declared 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".

The IRP ruling came about six weeks after an in-person hearing was conducted by the Panel in Washington D.C. on May 22 and May 23, 2015, also sets a major precedent because of the binding nature of the many previous interim procedural orders and decisions that were rendered by the Panel before this final declaration. Moreover, the DCA vs. ICANN IRP was also the first to be filed under the new gTLD Program of ICANN.

Commenting on the ruling, Sophia Bekele, Executive Director and CEO 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."

"Going forward, we now expect ICANN to accept the binding IRP outcome, refrain from any further plans to delegate .Africa to the ZA Central Registry who should now be removed immediately from the new gTLD program; and cooperate fully with DCA Trust to ensure that the IRP Panel ruling is implemented so that .Africa can be delegated to DotConnectAfrica Trust under a cooperative framework that will satisfy the stipulations of DCA's charitable objectives."

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.

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

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