29 April 2015

IRP Panel in DCA Trust Case Overrules ICANN Bylaws Provision

ICANN Bylaws, Article IV, Section 3, Paragraph 12"In order to keep the costs and burdens of independent review as low as possible, the IRP Panel should conduct its proceedings by email and otherwise via the Internet to the maximum extent feasible. Where necessary, the IRP Panel may hold meetings by telephone. In the unlikely event that a telephonic or in-person hearing is convened, the hearing shall be limited to argument only; all evidence, including witness statements, must be submitted in writing in advance." (emphasis added)
On April 20, 2015, the IRP Panel in the DCA Trust vs. ICANN IRP, overruled the above ICANN bylaws provision which the IRP Panel found "unduly and improperly restricts" the Panel's ability to conduct the "independent review" expressly mandated, and therefore "...the Panel requires all three witnesses in this IRP to be physically present at the hearing in Washington, D.C. If a witness fails to appear at the hearing without a valid reason acceptable to the Panel, the Panel shall in its sole discretion draw the necessary inferences and reach appropriate conclusions regarding that witness’s Declaration. [38.] Based on the above, the Panel requires all three witnesses in this IRP to answer viva voce any questions the Panel may have for them, and thereafter, answer any follow up questions that counsel for the Parties may have for them in respect to the questions asked by the Panel...."

The IRP Panel also noted: "Accountability requires an organization to explain or give reasons for its activities, accept responsibility for them and to disclose the results in a transparent manner... ICANN’s Bylaws have determined that the IRP would be governed by the ICDR International Arbitration Rules (“ICDR Rules”) as supplemented by the Supplementary Procedures... Nothing in the Supplementary Procedures either expressly or implicitly conflicts with or overrides the general and broad powers that Articles 16 and 36 of the ICDR Rules confer upon the Panel to interpret and determine the manner in which the IRP proceedings are to be conducted and to assure that each party is given a fair opportunity to present its case ..."  (Third Declaration on the IRP Procedure, p.6, April 20, 2015, emphasis added)

DCA Trust vs ICANN IRP Panel Ruling, April 29, 2015, p. 7
DCA Trust vs ICANN IRP Panel Ruling, April 20, 2015, p. 7
According to a filing by DCA Trust [DotConnectAfrica Trust], the purpose of the DCA Trust IRP is to "resolve a dispute arising from ICANN’s failure to abide by its Bylaws, Articles of Incorporation and applicable principles of international law in its processing of DCA’s application for rights to administer the .AFRICA [new] gTLD. ICANN wrongfully rejected DCA’s application based on complaints raised by the partner of the only other applicant for .AFRICA, in contravention of its own procedures and the applicable law." 

The entire record of the DotConnectAfrica Trust IRP can be found on the ICANN website here.


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