• Copy the reference
  • Tutorial video

Lawyers, other representatives, expert(s), tribunal’s secretary

Final Declaration

Claimant Amazon EU S. a. r. l. ("Amazon") seeks independent review of the decision of the Board of the Internet Corporation for Assigned Names and Numbers ("ICANN"), acting through ICANN's New gTLD Program Committee ("NGPC"), denying its applications for top-level domain names of.amazon and its IDN equivalents in Chinese and Japanese characters. Amazon contends that in making the decision to deny its applications, the NGPC acted in a manner that was inconsistent with and violated provisions of ICANN's Articles of Incorporation, Bylaws and/or Applicant Guidebook for gTLD domain names (collectively, ICANN's "governance documents"). ICANN contends, to the contrary, that at all times the NGPC acted consistently with ICANN's governance documents.
After conducting a two-day in-person hearing on May 1–2, 2017 and having reviewed and considered the briefs, arguments of counsel and exhibits offered by the parties as well as the live testimony and the written statement of Akram Atallah, the written statement of Scott Hayden, the expert reports of Dr. Heather Forrest, Dr. Jerome Passa, and Dr. Luca Radicati di Bronzoli, the Panel declares that:

a. The Board, acting through the NGPC, acted in a manner inconsistent with its Articles, Bylaws and Applicant Guidebook because, as more fully explained below, by giving complete deference to the consensus advice of the Government Advisory Committee ("GAC") regarding whether there was a well-founded public policy reason for its advice, the NGPC failed in its duty to independently evaluate and determine whether valid and merits-based public policy interests existed supporting the GAC's consensus advice. In sum, we conclude that the NGPC failed to exercise the requisite degree of independent judgment in making its decision as required by Article IV, Section 3.4(iii) of its Bylaws. (See also ICANN, Supplementary Procedures, Rule 8(iii) [hereafter "Supplementary Procedures"].)

b. The effect of the foregoing was to impermissibly convert the strong presumption to be accorded GAC consensus advice under the Applicant Guidebook into a conclusive presumption that there was a well-founded public policy interest animating the GAC advice.

c. While the GAC was not required to give a reason or rationale for its consensus advice, the Board, through the NPGC, was. In this regard, the Board, acting through the NGPC, failed in its duty to explain and give adequate reasons for its decision, beyond merely citing to its reliance on the GAC advice and the presumption, albeit a strong presumption, that it was based on valid and legitimate public policy concerns. An explanation of the NGPC's reasons for denying the applications was particularly important in this matter, given the absence of any rationale or reasons provided by the GAC for its advice and the fact that the record before the NGPC failed to substantially support the existence of a well-founded and merits-based public policy reason for denying Amazon's applications.

d. Notwithstanding the strong presumption, there must be a well-founded public policy interest supporting the decision of the NPGC denying an application based on GAC advice, and such public policy interest must be discernable from the record before the NGPC. We are unable to discern a well-founded public policy reason for the NGPC's decision based upon the documents cited by the NGPC in its resolution denying the applications or in the minutes of the May 2014 meeting at which it decided that the applications should not be allowed to proceed.

e. In addition, the failure of the GAC to give Amazon, as a materially affected party, an opportunity to submit a written statement of its position to the GAC, despite Amazon's request to the GAC Chair, violated the basic procedural fairness requirements for a constituent body of ICANN. (See ICANN, Bylaws, art. III, § 1 (July 30, 2014) [hereinafter Bylaws].) In its decision denying the applications, the NGPC did not consider the potential impact of the failure of the GAC to provide for minimal procedural fairness or its impact on the presumption that would otherwise flow from consensus advice.

f. In denying Amazon's applications, the NGPC did not violate the Bylaws' prohibition against disparate treatment.

g. Amazon's objections to changes made to the Applicant Guidebook are untimely.


The relevant procedural background of this Independent Review Process ("IRP") is:
The parties to the IRP are identified in the caption and are represented as follows:

Claimant: John Thorne of Kellogg, Hansen, Todd, Figel & Frederick

Respondent: Jeffrey LeVee of Jones Day

The authority for the Independent Review Process is found at Article IV, Section 3 of the ICANN Bylaws.
The applicable Procedural Rules are ICDR's International Dispute Resolution Procedures, as amended and in effect on June 1, 2014, as augmented by ICANN's Supplementary Procedures, as amended and in effect as of 2011.
On May 14, 2014, relying primarily upon the GAC's consensus objection, the NGPC rejected Amazon's applications.
Amazon's request for reconsideration was rejected by ICANN's Board Governance Committee on August 22, 2014.
Thereafter, Amazon notified ICANN of its intention to seek independent review under Article IV, Section 3 of ICANN's Bylaws, and Amazon and ICANN participated in a Cooperative Engagement Process in an attempt to resolve the issues related to Amazon's applications. No resolution was reached.
On March 1, 2016, Amazon filed a Notice of Independent Review with the International Centre for Dispute Resolution, and thereafter, this Independent Review Panel (the "Panel") was selected pursuant to the procedures described therein.
After a preliminary telephonic conference on October 4, 2016, the Panel issued Preliminary Conference and Scheduling Order No. 1, inter alia, establishing timelines for document exchange and granting Amazon's request for an in-person hearing to be held in Los Angeles, California. Thereafter, on November 17, 2016, in its Order No. 2, the Panel granted Amazon's application to permit live testimony at the hearing of Akram Atallah, the Interim President and Chief Executive Officer of ICANN, and denied its requests for live testimony by Amazon's Vice President and Associate General Counsel for Intellectual Property Scott Hayden; Dr. Heather Forrest, an Amazon expert witness; and Heather Dryden, former chair of the GAC. After some adjustment, a schedule for pre-hearing briefs was established and the merits hearing dates were set for May 1–2, 2017.
On January 3, 2017, the Panel approved a Joint Stipulation Against Unauthorized Disclosure of Confidential Information ("Joint Stipulation") providing for the good faith designation of proprietary and sensitive internal documents as CONFIDENTIAL or HIGHLY CONFIDENTIAL.
An in-person merits hearing was held in Los Angeles on May 1–2, 2017, at which Mr. Atallah's testimony was taken, exhibits were produced and the matter argued. At the conclusion of the hearing on May 2, the Panel closed the proceedings, subject to receiving a transcript of the hearing and a consolidated exhibit list from counsel, and took the issues presented under submission.
Following the merits hearing, on June 7, 2017 the Panel issued its Order No. 3 denying Amazon's objections to ICANN's proposed redactions of the hearing transcript that disclosed information contained in several exhibits designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL under the Joint Stipulation.


The salient facts are:
Amazon is a global e-commerce company incorporated under the laws of Luxembourg. Marketing through retail websites worldwide, Amazon, together with its affiliates, is one of the largest internet marketers of goods in the world, with hundreds of millions of customers globally. (Statement of Scott Hayden, ¶ 5-6 [hereinafter Hayden Statement].) It has a well-recognized trade name of "Amazon" which is a registered trademark in over 170 nations. (Id., at ¶ 7.) For nearly two decades, Amazon has been granted and used a well-recognized second level domain name of amazon.com. (Id., at ¶ 15.)
In April 2012, Amazon applied to ICANN for the delegation of the top-level domain names.amazon and its Chinese and Japanese equivalents, pursuant to ICANN's Generic Top-Level Domains ("gTLD") Internet Expansion Program. (Id., at ¶12.)
There are significant security and operational benefits to a company having its own top level domain name, including its ability to "create and differentiate" itself and have its own "digital identity online." (Tr. Akram Atallah Test., 82-83 [hereinafter Atallah Tr.].) Amazon saw the potential of having the.amazon gTLD, or string, as a "significant opportunity to innovate on behalf of its customers" and improve its service to its hundreds of millions of customers worldwide. (Hayden Statement, ¶ 7.) It also saw it as a means to safeguard its globally recognized brand name. (Id.)
ICANN is a non-profit, multi-stakeholder organization incorporated in the State of California, established September 30, 1998 and charged with registering and administering internet names, both second and top level, in the best interests of the internet community. (Request for Independent Review, 3.) ICANN operates pursuant to Articles of Incorporation and Bylaws. The Bylaws applicable to this IRP proceeding are those as amended in July 30, 2014. (Id., at 3-4; see Bylaws (designated as Ex. C-64).)
In 2008 ICANN proposed to expand top level domain names beyond.com,.edu,.org to generic top level domain names. (Request for Independent Review, 6-7.) Through its multi-stakeholder policy development process, over a several-year period ICANN developed and issued an Applicant Guidebook ("Guidebook" or "AGB") setting forth procedures for applying for and the processing and approval of gTLD names. There have been several iterations of the Guidebook. The version applicable to the Amazon applications at issue was adopted in 2012. (Id.; see ICANN, gTLD Applicant Guidebook (June 4, 2012) (designated as Ex. C-20) [hereinafter Guidebook].)
The Guidebook sets forth procedures for applying for and objecting to top level domain names. As for geographic names, the Guidebook adopts the ISO geographic names registry that includes prohibited geographic names and restricted geographic names, the latter which cannot be used over the objection of a nation that has an interest in such names. (See Guidebook, §§, There is an initial review process for all applications for gTLDs. (Id., at § The objection process includes both an Independent Objector ("IO") process and the potentiality of an objection by one or more governments that make up ICANN's Government Advisory Committee ("GAC"). (Id., at §§,, 3.2.5.) An IO can lodge an objection which ordinarily results in one or more independent experts being appointed by the International Chamber of Commerce to determine the merits of the objection, against criteria set forth in the Guidebook. (Id., at § 3.2.5.) Short of an objection, a GAC member government is permitted to lodge an "Early Warning Notice" expressing its public policy "concerns" regarding an application for a gTLD or string. (Id., at § The Guidebook also contemplates situations where the member governments of the GAC provide "consensus advice" objecting to a string, in which case such "advice" is to be given a strong presumption against allowing an application to proceed. (See generally Guidebook, Module 3.)
There have been over 1,900 applications for gTLDs. Only a small fraction of them, less than 20, have been the subject of GAC advice. (Atallah Tr., 214.)
Amazon's applications passed ICANN's initial review process with flying colors, receiving the highest possible score in ICANN's initial review report ("IER"). (Hayden Statement, ¶¶ 25-30.) Indeed, on July 13, 2013, ICANN issued an IER for the.amazon application that received a maximum score of 41 out of a possible 41 points. (Id.) The IER stated that.amazon did "not fall within the criteria for a geographic name contained in the Applicant Guidebook §" (Id.) In other words, at this early stage, ICANN had determined that.amazon is not a listed geographic name in the AGB. This means that.amazon was not a prohibited nor restricted geographic name requiring governmental support. (Id., at ¶ 31.)
Nonetheless, on November 20, 2012, Amazon's applications were the subject of an Early Warning Notice filed by the governments of Brazil and Peru. (See Ex. C-22.) By its own terms, an Early Warning Notice is not an objection; however, it puts an applicant on notice that a government has a public policy concern about the applied for string that could be a subject of GAC advice at some later point in time. (See Guidebook, § The Early Warning Notice process is set forth in ICANN's Applicant Guidebook. (Id.)
The Early Warning Notice began with the recital that "The Amazon region constitutes an important part of the territory of... [eight nations, including six others besides Brazil and Peru] due to the extensive biodiversity and incalculable natural resources." (Ex. C-22, at 1.) Brazil and Peru then stated three reasons for their concerns about a private company, Amazon, being granted the gTLD "Amazon." (Id., at 1-2.) The reasons were that:

(1) It would prevent the use of this domain for purposes of public interest related to the protection, promotion and awareness raising an issue related to the Amazon biome. It would also hinder the possibility of use of this domain name to congregate web pages related to the population inhabiting that geographical region;

(2) The string "matched" part of the name, in English, of the "Amazon Cooperation Treaty Organization," an international organization formed under the Amazon Cooperation Treaty signed in 1978; and

(3) The string had not received support from governments of countries where the geographic Amazon region is located.1

(See Id.)

In a note to the Early Warning Notice, Brazil stated:

The principle of protection of geographic names that refer to regions that encompass peoples, communities, historic heritages and traditional social networks whose public interest could be affected by the assignment, to private entities, of gTLDs that directly refer to those spaces, is hereby registered with reference to the denomination in English of the Amazon region, but should not be limited to it.

(Id., at 3.) Brazil went on to state that its concerns about the.amazon string extended to the English word "amazon" in "other languages, including Amazon's IDN [internationalized domain name] applications" using Chinese and Japanese characters. (Id.)

The parties stipulated that none of the strings applied for by Amazon are listed geographic names as defined in ICANN's Applicant Guidebook. (Ex. C-102, ¶ 1; Expert Report of Dr. Heater Forrest, 18-28 [hereinafter Forrest Report].)
Part of Guidebook procedures provide for an Independent Objector ("IO") to challenge applications for domain names. (Guidebook, § 3.5.4.) Regarding Amazon's applications, on March 12, 2013, an IO, Alain Pellet, initiated community objections to Amazon's applications before the International Centre for Expertise of the International Chamber of Commerce ("Centre"). (Ex. C-102, ¶ 2.) The objections interposed by the IO were virtually identical to the concerns raised by Brazil and Peru in their Early Warning Notice. (Hayden Statement, ¶ 32.) Amazon responded to the IO's community objections in May 2013. Thereafter, on June 24, 2013, the Centre selected Professor Luca G. Radicati di Brozoli as an independent expert to evaluate the IO's objections. (Ex. C-47, at 4.) At the request of the IO, the independent expert, Professor Radicati, allowed both sides to file additional written statements. (Id., at 5.) The IO provided an augmented written statement on August 16, 2013, and Amazon replied to it on August 22, 2013. (Id., at 5.) Although, following an extension of time, his draft expert report was due October 5, 2013, Dr. Radicati did not submit his final expert report until January 27, 2014. (Id., at 5, 25.)
On January 27, 2014, Professor Radicati issued a detailed Expert Determination rejecting the IO community objections. (See Ex. C-47.) He methodically considered the four factors laid out in Section 3.5.4 of the Guidebook as to whether the IO's objection on behalf of the community, i.e., the people and area of the Amazon region, had merit. (Id., at 13-14.) Regarding the first factor, he found that there was a strong association between the "community" invoked by the IO and the strings applied for. (Id., at 15.) As to the second factor, i.e., whether there as a "clear delineation of the community" invoked by the IO, Dr. Radicati indicated that: "The record is mixed and doubts could be entertained as to whether the clear delineation criterion is satisfied." (Id., at 16-18.) In light of his conclusion that there was not material detriment to the community being represented by the IO, (see discussion infra), Dr. Radicati stated that there was no need to reach a "conclusive finding" on the second factor. (Id., at 18.)
One of the four factors was "[w]hether the Applications create a likelihood of material detriment to a significant portion of the Amazon community." (Id., at 21). Professor Radicati determined that the applied for string.amazon would not pose a material detriment to the region or the people who inhabit the geographic region proximate to the Amazon River. (Id., at 21-24)
Among other things, Professor Radicati found that neither the Amazon community nor any entity purporting to represent that community had applied for the string.amazon. (Id., at 23.) This failure alone, he found, "can be regarded as an indication that the inability to use the Strings in not crucial to the protection of the Amazon Community's interests." (Id. (emphasis added).) Regarding his finding of an absence of material harm, Professor Radicati concluded that the fact that an objector is deprived of future use of a specific gTLD is not a material detriment under ICANN's Guidebook:

[T]he Amazon Community's inability to use the Strings [.amazon and the two IDNs] is not an indication of detriment, and even less of material detriment. The Objection Procedures are clear in specifying that "[a]n allegation of detriment that consists only of the applicant being delegated the string instead of the objector will not be sufficient for a filing of material detriment" (Section 3.5.4).

(Id., at 23 (Emphasis in the original).)

Further, supporting his finding of no material detriment to the Amazon community and region, Professor Radicati noted that the applicant, Amazon, has used the name "Amazon"

as a brand, trademark and domain name for nearly two decades also in the States [including Brazil and Peru] arguably forming part of the Amazon Community.... There is no evidence, or even allegation, that this has caused any harm to the Amazon Community's interests, or has led to a loss of reputation linked to the name of the region or community or to any other form of damage.

... [I]t is unlikely that the loss of the '.com' after 'Amazon' will change matters.

(Id., at 23).

Regarding the absence of material detriment factor, Professor Radicati concluded:

More generally, there is no evidence either that internet users will be incapable of appreciating the difference between the Amazon group and its activities and the Amazon River and the Amazon Community, or that Amazonia and it specificities and importance for the world will be removed from the public consciousness, with the dire consequences emphasized by the IO. Were a dedicated gTLD considered essential for the interests of the Amazon Community, other equally evocative strings would presumably be available. ".Amazonia" springs to mind.

(Id., at 23.)

Another factor considered by independent expert Radicati was: "Whether there is substantial opposition to the Strings within the community." (Id., at 19.) In rejecting the IO objections, Professor Radicati, while aware of the Early Warning Notice of Brazil and Peru, was evidently unaware that they continued to object to the applied for strings, nor was he aware of the GAC advice. (Id., at 20-21.) Indeed, he stated:

As evidence of substantial opposition to the Applications the IO relies essentially on the position expressed by the Governments of Brazil and Peru in the Early Warning Procedure. The two Governments undoubtedly have significant stature and weight within the Amazon Community. However, as noted by the Applicant, beyond their expressions of opposition in the Early Warning Procedure, the two Governments did not voice disapproval of the initiative in other forms. As a matter of fact, they engaged in discussions with the Applicant.

This is not without significance. Indeed, had the two Governments seriously intended to oppose the Application, they would presumably have done so directly. There is no reason to believe that they could have been deterred from doing so by the fear of negative consequences or by the costs of filing an objection. The Applicant is persuasive in arguing that the Brazilian and Peruvian Governments' attitude is an indication of their belief that their interests can be protected even if the Objection does not succeed. Indeed, in assessing the substantial nature of the opposition to an objection regard must be had not only to the weight and authority of those expressing it, but also to the forcefulness of their opposition.

(Id.) These considerations led Dr. Radicati to find that the IO has failed to make a showing of substantial opposition to the Applications within the purported Amazon Community. (See id.)

Professor Radicati was mistaken about the continued lack of opposition to the string, especially from Brazil and Peru. Had he been informed of their opposition and the GAC advice objecting to the strings, it would no doubt have changed his finding regarding whether there was substantial opposition to the strings. Nevertheless, even though, in addition to factors negating detriment, he considered lack of serious opposition as "indirect confirmation" of lack of detriment, it does not appear that Professor Radicati's lack of knowledge regarding the GAC advice would have significantly impacted the reasons for his finding that there was no material detriment to the interest of the people and region proximate to the Amazon River by awarding the string to Amazon. (Id., at 23-24.)
The NGPC, rejected Amazon's applications on May 14, 2014. While the NGPC had Professor Radicati's expert rulings and determinations before it, it did not discuss nor rely upon his expert determinations, inter alia, regarding the lack of material detriment, in making its decision to reject Amazon's applications. (Ex. C-102, ¶ 2.)
In order to assist it in carrying out its functions, ICANN has various supporting organizations and advisory committees. One such committee is the GAC which is comprised of representatives of governments from around the world and several multi-lateral governmental organizations. (Atallah Tr., 98-99.)
Amazon's applications were discussed at meetings of the GAC in Beijing in April, 20132 and, later, in Durban, South Africa on July 16, 2013.
At its plenary session in Durban on July 16, 2013, the GAC discussed the applications for the.amazon strings. The session was transcribed. (See Ex. C-40.) At this meeting, representatives of various nations spoke. (Id.) Brazil and Peru led the opposition to Amazon's strings, and approximately 18 delegates of GAC member nations expressed general support for Brazil and Peru's position opposing the applied for strings. (Id.) With one or two exceptions of no significance, only the governments of Brazil and Peru expressed any actual reasons for opposing the applications, but if anything, Brazil and Peru's reasons at the GAC meeting were either less specific than the three they gave in their Early Warning Notice or they were not well-founded grounds for objecting to the applied for strings. The representative of Peru, for example, stated that the applications should be rejected because "Amazon" was an ISO "listed" geographic name in the Guidebook; a statement which the parties now agree was erroneous, but not corrected during the Durban meeting.3 (Id., at 14-15.)
At the Durban GAC meeting, Brazil essentially pointed out that Brazil and other nations in the Amazon region of South America have a "concern" with the application to register the gTLD.amazon. (Id., at 11-13.) The reason for their concern, much less an articulated public policy concern, is not apparent. (Id.) For example, Brazil asked that the GAC reject the registration of "dot amazon by a private company in the name of the public interest." (Id., at 13.) Brazil does not define what the "public interest" for such a rejection would be. Moreover, how assigning.amazon to the applicant would harm the "public interest" was not explained. Brazil asserted that an undefined "community[,]" quite possibly, the people residing in the Amazon region, will "clearly be impacted[,]" but neither Brazil nor any other nation explained what this "impact" would be or how it would harm the population living in the Amazon region or be detrimental to its "bio systems." (Id., at 11-13). Brazil stated that it cannot accept the registration of.amazon to the applicant as "a matter of principle," but nowhere does it make clear what that "principle" is. (Id., at 13.) A Brazilian vice minister added that dot amazon affected "communities" in eight countries, and it is important to protect "geographical and cultural names." (Id., at 13-14.) Again, he did not articulate how such "names" would be harmed. (Id.)
At the Durban meeting, the representative of Peru set forth three "points that we think are crucial to understanding our request [to reject the applied for strings]." (Id., at 14.) According to the Peruvian representative, they were:

(1) "[L]egal grounds" found in the ICANN's Bylaws, in prior GAC advice and in the Guidebook, (Id., at 14.);4

(2) The string is a geographic name listed in the Guidebook and therefore requiring governmental consent (Id., at 14-15.);5 and

(3) The national and local governments of the countries through which the Amazon River flows "have expressed, in writing, their rejection to dot amazon." (Id., at 14-15, 24.).6

At the conclusion of the plenary session at Durban, after the representative of one nation acknowledged that "there are different viewpoints,"7 the GAC Chair, Heather Dryden, asked:

So I am now asking you in the [GAC] committee whether there are any objections to a GAC consensus objection to the applications for dot Amazon, which would include their IDN equivalents? I see none.... So it is decided.

(Id., at 30.)

In a communique at the conclusion of its Durban meeting, the GAC issued consensus8 advice to the Board of ICANN recommending to the Board that it not proceed with Amazon's applications, stating:

The GAC Advises the ICANN Board that:

i. The GAC has reached consensus [that the following application should not proceed] on GAC Objection Advice according to Module 3.1 part I of the Applicant Guidebook on the following applications:

1. The application for.amazon (application number 1-1315-58056) and related IDNs in Japanese (application number 1-1318-83995) and Chinese (application number 1-1318-5591).

(Ex. R-22, at 3-4 (footnote omitted).)

In substance, the GAC "advice" or recommendation was that the Board should reject the applications for all three gTLDs applied for by Amazon. (Id.) No reasons were given by the GAC for its advice, nor did it provide a rationale for the same.9 (See Id.)
During the course of the GAC's meetings in Durban, Amazon Vice President and Associate General Counsel Scott Hayden stated that Amazon "asked the GAC to grant us the opportunity to distribute to the GAC background materials about the.AMAZON Applications and the proposals we had made but the GAC Chair rejected our request." (Hayden Statement, ¶ 37.)
At all times pertinent herein, ICANN's Board delegated its authority to decide all issues relating to new gTLD program that would otherwise require a Board decision, including decisions regarding whether an application for a gTLD should proceed or be rejected, to the NGPC.10 (Ex. C-54, at 6.)
Procedures set forth in the Applicant Guidebook, Module 3.1 provide for an opportunity for an applicant to provide a written response to GAC advice. Amazon submitted a response taking issue with the GAC advice. (See Ex. C-43.) Thereafter, regarding one of the issues raised by Amazon, that is, whether Brazil or Peru had a right under international law to the name indicating the geographic region or river called "Amazon," the NGPC commissioned an independent legal expert, Dr. Jerome Passa, a law professor at the Université Panthéon-Assas in Paris, France, to opine. (See Ex. C-48.)
In his March 31, 2014 report, Dr. Passa concluded that neither Brazil nor Peru had a legally cognizable right to the geographic name "Amazon" under international law, or for that matter under their own national laws. (Ex. C-48, at 7, 14; accord Forrest Report, 5, 9-12). In sum, he concluded that there was no legal principle supporting Brazil and Peru's objections. In other words, the legal objection of Brazil and Peru was without merit and did not provide a basis for the rejection of Amazon's gTLD applications.11 (Ex. C-48, at 14.)
Moreover, Dr. Passa found that there was no prejudice to Brazil or Peru if the applied for strings were assigned to Amazon:

Beyond the law of geographical indications [which do not support Brazil and Peru's legal claims], the assignment of '.amazon' to Amazon would not in any event be prejudicial to the objecting states [Brazil and Peru] who, since they have no reason for linguistic reasons to reserve '.amazon', could always if they so wished reserve a new gTLD such as '.amazonia' or '.amazonas' which would create no risk of confusion with '.amazon'.

(Id., at 10; see also Ex. C-47, at 23.)

Both Amazon and the governments of Brazil and Peru were afforded an opportunity to respond to Dr. Passa's report. All three did so. (Ex. C-54, at 9-10.)
The NGPC considered Amazon's applications at several meetings. Following receipt of Dr. Passa's report and several letters responding thereto, the NGPC met on April 29, 2014 to consider the applications for the.amazon string and its Chinese and Japanese IDN equivalents. (See Ex. R-31, at 2-4.) The applications were discussed and the GAC advice referenced, but no decision was reached whether to allow the applications to proceed or to deny them. (Id.) Nor was any discussion or speculation by the NPGC regarding the rationale for the GAC advice, or any public policy reasons that supported it, reflected in the minutes of this meeting. (Id.)
At its May 14, 2014 meeting, the NGPC adopted a resolution12 in which it rejected Amazon's applications. Under the heading "GAC Advice on.AMAZON (and related IDNs)," the NGPC resolved that: "[T]he NGPC accepts the GAC advice... and directs the [ICANN] President and CEO... that the applications... filed by Amazon EU S.à.r.l. should not proceed." (Ex. C-54, at 6-7.)
The resolution goes on to state:

The action being approved today is to accept the GAC's advice to the ICANN Board contained in the GAC's Durban Communiqué stating that it is the consensus of the GAC that the applications... should not proceed. The New gTLD Applicant Guidebook (AGB) provides that if "GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed, this will create a strong presumption for the ICANN Board that the application should not be approved." (AGB, § 3.1). To implement this advice, the NGPC is directing the ICANN President and CEO... that the applications... should not proceed.

(Id., at 7.)

After referencing the fact of Amazon's position opposing the GAC advice and stating that it considered the report of Dr. Passa "as part of the NGPC's deliberations in adopting the resolution," the resolution states: "The NGPC considered several significant factors during its deliberations about how to address the GAC advice...." (Id., at 8-10.) The resolution noted that the NGPC "had to balance the competing interest of each factor to arrive at a decision." (Id., at 10.) Then, after noting that it lacked the benefit of any rationale from the GAC for its advice, it listed factors it relied upon, which were:

(1) The Early Warning Notice submitted by Brazil and Peru that state as reasons for their concern, namely:

(a) The granting of the string to Amazon would deprive the string for use by some future party for purposes of protecting the Amazon biome and/or its use related to the populations inhabiting the Amazon region; and

(b) Part of the string matches the name in English of the Amazon Cooperation Treaty Organization. (Id., at 10.)13

(2) Curiously, the NGPC considered correspondence reflecting that Amazon sought to amicably resolve Brazil and Peru's objections. We assume that Amazon's effort to informally resolve concerns of Brazil and Peru was not a factor that supported the NGPC's decision denying Amazon's applications. (Id., at 10-11.)14

(3) The resolution correctly noted that, as it stood in the position of the ICANN Board, under the Guidebook the NGPC was called upon to "individually consider an application for a new gTLD to determine whether approval would be in the best interests of the Internet community." (Id., at 11.)15

(4) The resolution goes on to list eighteen documents, including, for example, the Early Warning Notice, that the NGPC reviewed before deciding to reject Amazon's applications. (Id., at 11-13.) Aside from referring to the Early Warning Notice, there is no discussion in the resolution how any of these other documents impacted the NGPC's decision.

Thus, the only reasons articulated by the NGPC for its decision rejecting Amazon's applications were the strong presumption arising from the GAC consensus advice and, albeit without explanation, two reasons advanced by Brazil and Peru in their Early Warning Notice. Assuming that those reasons animated the GAC advice––and this is by no means clear16––there is no explanation by the NGPC in its resolution regarding why the reasons reflect well-founded and credible public policy interests.
The only live witness at the hearing was Akram Atallah, ICANN's Deputy Chief Executive Officer and President of its Global Domains Division. Mr. Atallah has held executive positions at ICANN since he joined in 2010, and, significantly, he attended all seven meetings of the NGPC at which Amazon's applications were agendized and discussed, and in particular the last two meetings on April 29 and May 14, 2014. (Atallah Tr., 86:14-24.)
In substance, Mr. Atallah testified that Amazon's applications would have been allowed to proceed, but for the GAC consensus advice opposing them. (Id., at 88-89).
Mr. Atallah testified that the NGPC did not consider the.ipiranga string, named for a famed waterway in Brazil, because neither Brazil nor the GAC opposed that string. Nor did Brazil submit an Early Warning Notice with respect to.ipiranga. (Id., at 90).
Regarding the impact of GAC consensus advice on the NGPC's decision, Mr. Atallah testified that ICANN is not controlled by governments, but ICANN procedures permit governments, through the GAC, to provide input, both as to ICANN policy matters and individual applications to ICANN. (Id., at 94-95.) The NPGC resolution (Ex. C-54) provides the entire rationale for the Board's (here, the NGPC's) decision to reject Amazon's applications. (Id., 93.) Because it lacks expertise, the NGPC, acting for the Board, did not and "will not substitute its decision" for the GAC's, especially on public interest issues. (Id., at 99-101, 128.)
Once the GAC provides the NGPC with consensus advice, Mr. Atallah explained, not only is there a strong presumption that it should be accepted, but it also sets a bar too "high for the Board to ignore." (Id.) Put differently, the bar is "too high for the Board to say no." (Id.) The Board, he said, defers to the consensus GAC advice as a determination that there is, in fact, a well-founded public policy reason supporting it. (Id., at 102). He added: "the board does not substitute its opinion to the opinion of the countries of that region when it comes to the public interest." (Id., at 128:16-18).
Mr. Atallah acknowledged that if GAC consensus advice was based upon the GAC's (or governments' advocating for a GAC consensus objection) mistaken view of international law, it would outweigh the strong presumption and the advice would be rejected by the Board. (Id., at 127:11-128:4.) But the Board would not consider GAC consensus advice based on an anti-U.S. bias or "fear of foreign exploitation," whether rational or not, as grounds for rejecting such advice. (Id., at 129:21-130:9.)
Although the NGPC considered the reasons given in the Early Warning Notice, Mr. Atallah made clear that the NGPC made no independent inquiry regarding whether there was a well-founded public policy rationale for the GAC advice, (Id., 102:17-20), nor did the NGPC explain why the reasons given in the Early Warning Notice stated well-founded public policy concerns for rejecting the applications. Moreover, the NGPC in its resolution did not discuss, much less evaluate Brazil and Peru's reasons for their objection to the strings, (see Ex. C-54).
On August 22, 2014, ICANN's Board Governance Committee denied Amazon's request for reconsideration of the NGPC's decision. (Ex. C-67.)
On March 1, 2016, Amazon filed its Notice and Request for an Independent Review of the NGPC decision denying its applications.


The task of this Panel is to determine whether the NGPC acted in a manner consistent with ICANN's Articles of Incorporation, Bylaws and Applicant Guidebook.17 The most salient provisions of these governance documents are listed below.
Article IV, Section 3(4) of the Bylaws and Rule 8 of ICANN Supplementary Procedures for Independent Review Process provide :

The IRP Panel must apply a defined standard of review to the IRP request, focusing on: a. did the Board act without conflict of interest in taking its decision?; b. did the ICANN Board exercise due diligence and care in having sufficient facts in front of them?; and c. Did the ICANN Board members exercise independent judgment in taking the decision, believed to be in the best interest of the company [i.e., the internet community as a whole]?

(See Bylaws, Art. IV, § 3(4).) Here, only compliance with requirements (ii) and (iii) in issue.

Art. 4 of the Articles of Incorporation :

"[ICANN] shall operate for the benefit of the Internet community as a whole...."

Art. I, Sec. 2 of the Bylaws: CORE VALUES18

In performing its mission, the following core values should guide the decisions and actions of ICANN:


3. To the extent feasible and appropriate, delegating coordination functions to or recognizing the policy role of other responsible entities that reflect the interest of affected parties.

4. Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making....

6. Introducing and promoting competition in the registration of domain names where practicable and beneficial in the public interest.

8. Making decisions by applying documented policies neutrally and objectively, with integrity and fairness....

10. Remaining accountable to the Internet community through mechanisms that enhance ICANN's effectiveness [such as the process of independent review].

11. While remaining rooted in the private sector, recognizing that governments... are responsible for public policy and duly taking into account governments'... recommendations.

... Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values.


"ICANN shall not... single out any particular party for disparate treatment unless justified by substantial and reasonable cause...."

Art. III (TRANSPARENCY), Sec. 1 of the Bylaws: PURPOSE

"ICANN and its constituent bodies shall operate to the maximum extent feasible in a[]... transparent manner and consistent with procedures designed to ensure fairness."


"... ICANN should be accountable to the community for operating in a manner that is consistent with these Bylaws, and with due regard for the core values set forth in Article I of these Bylaws."

Art. IV (ACCOUNTABILITY AND REVIEW), Sec. 3 of the Bylaws:


The Board, or in this case, the NGPC final decision is subject to an "independent review" by this independent review panel to determine whether the Board/NGPC made its decision in a manner consistent with ICANN's articles of incorporation, applicable Bylaws and the applicant guidebook, i.e., its governance documents.

Art. XI (ADVISORY COMMITTEES), Sec. 1 of the Bylaws: GENERAL

"Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board."

Art. XI, Sec. 2(1)(a) of the Bylaws

"The [GAC] should consider and provide advice on the activities of ICANN as they relate to concerns of governments, particularly... where they may affect public policy issues."

Art. XI, Sec. 2(1)(j) of the Bylaws

"The advice of the [GAC] on public policy matters shall be duly taken into account, both in the formulation and adoption of policies."

Module 2 of the Applicant Guidebook19

Module 2 of the Guidebook sets forth the evaluation procedures for gTLD strings, including string similarity, string confusion, DNS stability, reserved names and geographic names.

Sec. of the Applicant Guidebook "Applications for gTLD strings must ensure that appropriate consideration is given to the interests of governments... in geographic names. The requirements and procedure

ICANN will follow in the evaluation process are described in the following paragraphs."

Sec. of the Applicant Guidebook

"The following types of applied-for strings are considered geographic names and [require]... non-objection from the relevant governments...." This is followed by a list of four specific categories, including, inter alia, cities, sub-national place names, etc.

Sec. of the Applicant Guidebook

"A Geographic Names Panel (GNP) will determine whether each applied-for gTLD string represents a geographic name.... For any application where the GNP determines that the applied-for string is not a geographic name requiring government support (as described in this module), the application will pass the Geographic Names review with no additional steps required."

Attachment to Module 2 of the Applicant Guidebook, at A-1

"It is ICANN's goal to make the criteria and evaluation as objective as possible."

Module 3 of the Applicant Guidebook

Module 3 relates to Objection Procedures.

Sec. 3.1, GAC Advice on New gTLDs of the Applicant Guidebook

The process for GAC Advice on New gTLDs is intended to address applications that are identified by governments to be problematic, e.g., that potentially violate national law or raise sensitivities [i.e., may affect public policy issues].


... The GAC [may] advise[] ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN that the application should not be approved.


Having set forth the procedural history, the relevant facts and the applicable provisions of ICANN's governing documents, the Panel now sets forth the issues raised by the parties and then provides the reasons for its Declaration.
Amazon seeks a declaration that the NGPC, acting for the Board, acted in a manner inconsistent with certain provisions, discussed below, of ICANN's Articles of Incorporation, Bylaws and/or Guidebook in connection with its rejection of the Amazon applications. Distilled to their essence, Amazon makes the following contentions:

a. The GAC was required to state a reason(s) or rationale for its consensus advice, i.e., reason(s) for recommending that Amazon's applications be denied.

b. As a constituent body of ICANN, the GAC was required to adhere to the Bylaws' duties of procedural fairness under Article III, Section 1. To comply with this Bylaw, the GAC was either required to permit Amazon, as the potentially adversely affected party in interest, to appear before the GAC or, at a minimum, submit information to the GAC in writing before it issued consensus advice.

c. To warrant a strong presumption, GAC advice must be based upon a valid and legitimate public policy interest(s).

d. By failing to make an independent evaluation of whether or not there was a valid public policy rationale for the GAC advice, the NGPC abdicated its independent decision making function to the GAC, converted the strong presumption to be given to GAC consensus advice into a conclusive presumption or veto, and otherwise abandoned its obligation to make a sufficient due diligence investigation of the facts needed to support its decision and/or failed to make an independent, merits-based decision in the best overall interest of the Internet community.

e. To comply with ICANN's transparency obligations, the NGPC must give reasons for its decisions. The NGPC's resolution of May 14, 2014 is not a sufficient statement of reasons for its decision rejecting Amazon's applications in that the NGPC failed to state any public policy rationale for its decision and/or balance the interests of Amazon favoring the granting of the applications with public policy interests militating against granting same.

f. The ICANN Board, acting through the NGPC, violated its obligation not to engage in disparate treatment of the applicant under Article II, Section 3 of the Bylaws by denying its application, whereas under similar circumstances a private Brazilian corporation was granted the gTLD of.ipiranga, a string based on the name of another celebrated waterway in Brazil.20

As for relief, in addition to a declaration by this Panel that the NGPC acted inconsistently with ICANN governance documents, Amazon seeks affirmative relief in the form of a direction to ICANN to grant Amazon's applications. Alternatively, Amazon asks the Panel to recommend to the ICANN Board that its applications be granted and to set timelines for implementation of the Panel's recommendation, including a timeline for ICANN's "meet and confer" obligation with the GAC.21
ICANN disputes each of Amazon's contentions and asserts that the NPGC did not violate the Articles of Incorporation, the Bylaws or the Guidebook. Fairly synthesized, it argues:

a. There is nothing in the Articles of Incorporation, applicable Bylaws22 or Guidebook that requires the GAC to state any reason for its consensus advice.

b. The procedural fairness obligation applicable to the GAC, as a constituent body of ICANN, did not require the Board to assure that a representative of a private company be able to appear before the GAC, nor did it require the Board to allow a potentially adversely affected party to be able to submit written statements to the GAC.23

c. Although the GAC advice must be based on legitimate public policy considerations, even in the absence of a rationale for the GAC advice, there was sufficient support in the record before the NGPC for the NGPC to discern a well-founded public policy interest, and it was proper for the NGPC to consider reasons given in the Early Warning Notice as providing a public policy reason supporting the NGPC decision.

d. Given the strong presumption arising from GAC consensus advice, the NGPC appropriately decided to reject Amazon's applications.

e. The NGPC gave reasons for its decision, and the reasons given by the NGPC for denying Amazon's applications are sufficient.

f. The NGPC did not engage in disparate treatment of Amazon. The anti-disparate treatment provision contained in the Article II, Section 3 of the Bylaws should be read, not as applying to ICANN as a whole, but as a limitation on actions of the ICANN Board. As there was no objection to.ipiranga, neither the NGPC nor the Board was ever called on to decide whether.ipiranga should be granted to a private company.24 Accordingly, there could be no disparate treatment by the Board, or the NGPC acting for the Board, regarding the strings at issue in this proceeding.

g. Amazon's challenge to a 2011 change in the Applicant Guidebook relieving the GAC of any requirement to provide reasons for its advice is untimely.

Further, ICANN takes issue with the relief requested by Amazon. It argues that the Panel's powers are limited under the Bylaws to declaring whether or not the Board, or in this case the NGPC, complied with its obligations under ICANN's governance documents. It acknowledges, however, that if the Panel finds that the NGPC acted in a manner inconsistent with the governance documents, the Panel may properly make remedial recommendations to the Board.


The majority of the Panel discusses seriatim each of the pertinent issues fairly raised by parties as part of the Independent Review Process.

A. Was the GAC required to state a reason(s) or provide a rationale for its advice?

There is little question that a statement of reasons by the GAC, when providing consensus advice regarding an application for an internet name, is desirable. Having a reason or rationale would no doubt be helpful to the ICANN Board in evaluating the GAC's advice and assuring that there is a well-founded public policy interest behind it. Nonetheless, there is no specific requirement that the GAC provide a reason or rationale for its advice, and therefore, we conclude that a rationale or statement of reasons by the GAC was not required at the time of its action in this matter.25
Amazon argues the decision in the DCA Trust IRP, particularly paragraph 74, is precedent for proposition that the GAC must provide a reason for its advice. In that IRP, the Panel held: "As previously decided by this Panel, such accountability requires an organization to explain or give reasons for it activities, accept responsibility for them and to disclose the results in a transparent manner." (See DotConnectAfrica Trust v. ICANN, Case No. 50-2013-001083, Final Declaration, at ¶ 74 (Int'l Centre for Dispute Resolution, July 31, 2015), https://www.icann.org/en/system/files/files/final-declaration-2-redacted-09jul15-en.pdf (Emphasis added) [hereinafter DCA Trust].)
While prior IRP decisions are indeed precedential, although not binding on this Panel,26 we believe that read in context, DCA Trust stands for the proposition that the Board, to meet its accountability and transparency obligations, must give reasons for its actions. We do not read this language as requiring the GAC to do so.
It is true that ICANN changed its Bylaws in 2016 and now the GAC is required to provide a rationale for its advice, but this change is not retroactive, and, contrary to Amazon's argument, cannot be viewed as merely codifying the holding in DCA Trust. (See discussion supra, at 32 n. 22.)

B. Was Article III, Section 1's procedural fairness requirement violated?

This issue is evidently one of first impression. We have been unable to find any prior IRP matter that has considered this issue with respect to the GAC, and none was cited to us by the parties.
Article III, Section 1 of the Bylaws provides: "ICANN and its constituent bodies shall operate... with procedures designed to ensure fairness." (Emphasis added.)
The GAC is a constituent body of ICANN within the meaning of this Article. Indeed, ICANN does not argue otherwise. Nor is there any doubt, under the facts presented, that Amazon attempted to offer a written statement or materials regarding why the GAC should not adopt consensus advice opposing Amazon's applications. (Hayden Statement, ¶ 37.) It was not permitted to do so. (Id.) Nor is there any doubt that, as the applicant, Amazon stood to be materially adversely affected if the GAC issued consensus advice against its application, if for no other reason than there would be a strong presumption that, if the GAC did so, Amazon's application should be rejected by the ICANN Board.
Basic principles of procedural fairness entitle an applicant who request to have the opportunity to be heard in some manner before the GAC, as a constituent body of the ICANN. There is, however, a question of how much procedural fairness is required to satisfy Article III, Section 1. We need not decide whether such procedural fairness necessarily rises to the level normally required by administrative and quasi-judicial bodies. (See, e.g., Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).) However, in matters relating to individual applications being considered by the ICANN Board itself, it is noteworthy that while individual applicants are not permitted to appear in person and make a presentation to the Board, ICANN's procedures permit an applicant, whose interests may be adversely affected by a decision of the Board regarding its application, to submit a written statement to the Board as to why its application should be permitted to proceed. The Panel is of the view that the same type of procedural fairness afforded by the Board required the GAC, as a constituent body of ICANN, to provide a comparable opportunity. Thus, under the facts of this IRP, the procedural fairness obligation applicable to the GAC, at a minimum, required that the GAC allow a written statement or comment from a potentially adversely affected party, before it decided whether to issue consensus advice objecting to an application. The Board's obligation was to see that the GAC, as a constituent body of ICANN, had such a procedure and that it followed it.
In this case, Amazon attempted to distribute written materials explaining its position to the GAC, but the GAC Chair denied its request. (Hayden Statement, ¶ 37.) Allowing a written submission would have given Amazon an opportunity, among other things, to correct the erroneous assertion by representatives of the Peruvian government that "Amazon" was a listed geographic name under the Guidebook. Amazon might have been able to submit information that neither Brazil nor Peru had a legal or sovereign right to the name "Amazon" under international or domestic law and that Amazon had registered the trademark or trade name of "Amazon" in many nations of the world, including Brazil and Peru. In any event, the failure to provide Amazon with an opportunity to submit a written statement - - despite its request that it be allowed to do so - - to the very body of ICANN that was considering recommending against its application violated Article III, Section 1.
In the view of the majority of the Panel, while the GAC had the ability to establish its own method of proceeding, its failure to afford Amazon the opportunity to submit a written statement to the GAC governments at their meeting in Durban undermines the strength of the presumption that would otherwise be accorded GAC consensus advice. While our holding is limited to the facts presented in this matter, it draws support from the principle that a party has the right to present its views where a judicial or arbitral body is deciding its case. Indeed, this fundamental principle of procedural fairness is widely recognized in international law. Moreover, international law also supports the view that the failure to afford a party the opportunity to be present its position affects the value of the decision-making body's proclamations. For example, in the realm of international arbitration, the awards of arbitrators are given substantial, nearly irrefutable, deference. (See generally Convention on the Recognition and Enforcement of Foreign Arbitral Awards arts. III, V, July 6, 1988, 21 U.S.T. 2517, 330 U.N.T.S. 38 (the "New York Convention").) However, the New York Convention allows a court to refuse to enforce an arbitration award—that is, refuse to show the arbitrators deference—if "[t]he party against whom the award is invoked was not given proper notice... or was otherwise unable to present his case." (Id., at art. V(1)(b).) Identical provisions allowing a party to either set aside an arbitration award or resist its enforcement appear in the Model Law on International Commercial Arbitration published by United Nations Commission on International Trade Law. (See United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985, with Amendments as Adopted in 2008, arts. 34(2)(a)(ii), 36(1)(a)(ii) (Vienna: United Nations, 2008).)
We find that this principle, enshrined in international arbitration law by convention, is instructive here. While the GAC is indisputably a political body - - not a judicial or arbitral body - - its consideration of specific gTLD applications takes place within the framework of the ICANN Board's application review process where the GAC's consensus advice is given a strong presumption by the Board, which itself is functioning as a quasi-judicial body. Thus, under the facts before us, the GAC's decision not to provide a affected party with the opportunity to be present a written statement of its position, notwithstanding its specific request to do so, not only constitutes a violation of procedural fairness obligations under Article III, Section 1 of the ICANN Bylaws, it diminishes the strength of the strong presumption that would otherwise be warranted based upon GAC consensus advice.
It is true, as ICANN established at the hearing, that because Amazon's applications were considered at two GAC meetings, Amazon had an opportunity between those meetings to lobby one or more governments to object to consensus advice, and it attempted to do so. Whatever this opportunity was, however, it was not a procedure that the GAC made available when requested by an applicant. Moreover, attempting to influence governments, who have their own political agendas and trade-offs that could be extraneous to the merits of an application for an internet name, is not the same as procedural fairness provided by the GAC itself. That duty is independently mandated under the Bylaws and is not supplanted by an opportunity to lobby governments apart from or in-between GAC meetings.
Our decision regarding minimum procedural fairness required by Article III, Section 1 of the Bylaws finds support in the DCA Trust IRP. In that matter, the Panel noted that DCA Trust was not given "an opportunity in Beijing or elsewhere to make its position known or defend its own interests before the GAC reached consensus on the GAC Objection Advice[...]" (See DCA Trust, at ¶ 109.) The DCA Trust Panel went on to hold that this lack of procedural opportunity was "not [a] procedure[] designed to insure the fairness required by Article III, sec. 1." (Id.)

C. Must GAC advice be based upon public policy considerations?

The reasons for GAC Advice, even if not expressed, as is the case before us, must nonetheless be grounded in public policy. This proposition is fairly gleaned from several provisions of ICANN's governance documents. Thus, the Bylaws recognize that the GAC's purpose is to advise the Board regarding its activities "where they may affect public policy issues." (Bylaws, art. XI, § 2(1)(a).) So, not only does the GAC have an important role in providing recommendations and advice regarding policy development by ICANN, but it also can intervene regarding a specific application to ICANN provided that the application raises legitimate public policy concerns. The GAC Operating Principles reinforce the need for a nexus between GAC advice and legitimate public policy concerns. (See ICANN Governmental Advisory Comm. Operating Principles, art. I, principles 2, 4.) Although not a decision-making body, as reflected in its Operating Principles, the GAC views itself as providing advice and recommendations to the ICANN Board and operating as a forum to discuss "government and other public policy issues and concerns." (Id.) The Applicant Guidebook indicates that the GAC may object when an application "violates national laws or raises sensitivities."27 (Guidebook, module 3.1.)
Moreover, the public policy concerns underlying GAC advice must be well-founded. Mr. Atallah acknowledged that if GAC consensus advice was based upon a mistaken view of international law, the Board would reject such advice. (Atallah Tr., 127:14-128:4.) Thus, we conclude that if, for example, in the unlikely event that GAC consensus advice was animated by purely private interests, or corruptly procured, the ICANN Board would properly reject it. Put differently, such advice, even if consensus advice, would not be well-founded and would not warrant a strong presumption, or any presumption at all. Similarly, if the only reason for the GAC advice was that the applied for string is a listed geographic name under the Guidebook, whereas in truth and in fact it is not a listed geographic name, that reason, although based on public policy concerns, would be not be well-founded and, therefore, would be rejected by the Board. Put differently, the objection based on such grounds would not warrant a presumption that it should be sustained. Similarly, if the reason for objecting to the string is that assigning it would violate international or national laws, consensus advice might warrant a presumption if well-founded, but that presumption would be overcome by expert reports that make clear that neither international law, nor national law of the objecting countries, prohibit the assignment of the string to the applicant. This is especially true where, as here, an independent expert report commissioned by the NGPC made clear that the legal objection of Brazil and Peru lacked merit. If the only reason for the consensus advice is that another entity, presumably a non-governmental organization (NGO), in the future would be denied the string, at a minimum the NGPC, acting for the Board, would need to explain why the Guidebook rule that deprivation of future use of a string, standing alone, is not a basis to deny a string is inapplicable. Further, if the public policy concern supporting the GAC advice is implausible or irrational, presumably the Board would find it not well-founded and would not be compelled to follow it, notwithstanding the strong presumption. (Cf. Atallah Tr., 128:24-129:20.)
The foregoing illustrates why it is highly desirable for the GAC to provide reasons or a rationale for its consensus advice to the Board. In this matter, the only arguably valid reason for the GAC advice is the assertion by Brazil and Peru that sometime in the future a NGO or other entity may wish to use the applied for English gTLD and equivalents in Chinese and Japanese characters to promote the environment and/or the culture of indigenous people of the Amazon region. This is no doubt a public policy concern. However, the evidence before the NGPC, in the form of expert reports of Dr. Passa and Dr. Radicati, indicates quite clearly that there is no prejudice or material harm to potential future users of the applied for strings. Ordinarily, the Board defers to expert reports, especially expert reports, such as Dr. Passa's, commissioned by the Board, or in this instance, by the NGPC functioning as the Board.
We conclude that GAC consensus advice, although no reasons or rationale need be given, nonetheless must be based on a well-founded public interest concern and this public interest basis must be ascertained or ascertainable from the entirety of the record before the NGPC. In other words, the reason(s) supporting the GAC consensus advice, and hence the NGPC decision, must be tethered to valid and legitimate public policy considerations. If the record fails to contain such reasons, or the reason given is not supported by the record, the Board, in this case acting through the NGPC, should not accept the advice.28
As we explain more fully below, the Board cannot simply accept GAC consensus advice as conclusive. The GAC has not been granted a veto under ICANN's governance documents. If the NGPC's only basis for rejecting the applications was the strong presumption flowing from GAC consensus advice, this would have the effect of converting the consensus advice into a conclusive presumption and, in reality, impermissibly shifting the Board's duty to make an independent and objective decision on the applications to the GAC.
In this matter, the NGPC relied upon the reasons set out in the Early Warning Notice of Brazil and Peru as providing a rationale supporting the GAC advice. Although there is no clear evidence that the rationale for objecting to the use of the applied-for strings advanced by Brazil and Peru in the Early Warning Notice formed the rationale for the GAC advice,29 we believe it was appropriate for the NGPC to consider the reasons given by Brazil and Peru as support for the NGPC's decision, along with the presumption of valid public policy concerns arising from the consensus advice, as a basis for denying Amazon's application. Needless to say, however, the Early Warning Notice itself is not entitled to any presumption that it contains valid public policy reasons.
That said, as noted above, the reasons given by Brazil and Peru in their Early Warning Notice do not appear to be based on well-founded public policy concerns that justify the denial of the applications. Further, Brazil and Peru's objection to the applications based on deprivation of future use of the strings is not supported by the record, including the expert reports that are part of that record. In these circumstances, we are constrained to conclude that there is nothing to support the NGPC's decision other than the presumption arising from GAC consensus advice. There must be something more than just the presumption if the NGPC is to be said to have exercised its duty to make an independent decision regarding the applications, especially where, as in this matter, the GAC did not provide the ICANN Board with a rationale or reasons for its advice.

D. Were the Early Warning Notice reasons relied on by the NGPC well-founded public policy reasons?

Because the NGPC did not set forth its own reasons or analysis regarding the existence of a well-founded public policy concern justifying its rejection of the applications, the Panel must undertake to review the record before the NGPC. Having done so, we are unable to discern from the record before the NGPC a well-founded public policy rationale for rejecting the applications.
Four reasons were asserted by Brazil and Peru in their Early Warning Notice and the discussion at the meeting of the GAC in Durban on July 16, 2013:

a. Peru asserted that applications should be rejected because "Amazon" is a listed geographic name. ICANN, however, concedes that Peru's assertion, made at GAC's Durban meeting to rally support for GAC advice opposing Amazon's application, was erroneous. "Amazon" is not a listed geographic name. (See Ex. C-40, at 14-15, 24; Ex. C-102, ¶ 1.)

b. Brazil and Peru asserted legal rights to the name ".amazon" under international law, causing the NGPC to ask for an expert opinion on this issue. (Atallah Tr., 216:4-13.) Peru specifically claimed it had legal grounds to the name "Amazon," as it denotes a river and a region in both Brazil and Peru, (see, e.g., Ex. C-40, at 14), and it invoked the "rights of countries to intervene in claims that include words that represent a geographical location of their own," (Ex. C-95, at 2). The legal claim of Brazil and Peru is without merit. Dr. Passa's report, part of the record before the NGPC, makes plain that neither nation has a legal or sovereign right under international law, or even their own national laws, to the name. (Ex. C-48.) There appear to be no inherent governmental rights to geographic terms. (See Ex. C-34; Forrest Report, ¶ 5.2.1.)

c. Brazil and Peru asserted in their Early Warning Notice that unidentified governmental or non-governmental organizations, who in the future may be interested in using the string to protect the environment ("biome") of the Amazon region or promote the culture of the people that live in this region, will be deprived of future use of the.amazon top level domain name if the applications are granted. (Ex. C-40, at 11-12.) We discuss this assertion below.

d. Brazil and Peru also asserted that they objected to the applied-for string.amazon because it matched one of the words, in English, used by the Amazon Cooperation Treaty Organization. (See Ex. C-22, at 1.) A one word match is not likely to be misleading and is not a plausible public policy reason for an objection. (See discussion supra, at 22 n. 13.)

Only the third reason possibly presents a plausible public policy reason that could be considered to be well-founded. As discussed earlier, the record before the NGPC, however, undermines even this assertion as a well-founded reason for the GAC advice and, therefore, does not support the NGPC's decision denying the applications. First, it is noteworthy that under ICANN's own rules the mere fact that an entity will be deprived of the future use of a string is not a material reason for denying a domain name to an applicant. Indeed, the Guidebook prohibits ICANN from a finding of harm based solely on "[a]n allegation of detriment that consists only of the applicant being delegated the string instead of the objector." (Guidebook, § 3.5.4.) Thus, even had a non-governmental organization filed an application for the.amazon gTLD in order to promote the environment of the Amazon River basin or its inhabitants and objected to that string be awarded to the applicant, this would not alone justify denial of Amazon's applications. While not dispositive, it does lead us to conclude that there must be some evidence of detriment to the public interest in order to justify the rejection of the applications for the strings.
Even if, arguendo, deprivation of future use could be considered a public policy reason, the uncontroverted record before the NGPC, found in two expert reports, the report of ICC independent expert Professor Radicati di Brozolo and the expert report by Dr. Passa commissioned by the NGPC, was that the use of the string by Amazon was not prejudicial and would not harm such potential future interest in the name, because (1) no entity other than Amazon has applied for the string, (2) Amazon has used this tradename and domain name for decades without any indication it has harmed the geographic region of the Amazon River or the people who live there, and (3) equally evocative strings exist, such as "Amazonia" and "Amazonas"30 that could be used in the future to further the interests to which Brazil and Peru alluded in their Early Warning Notices. (See Ex. C-47, at 13-14, 21-23; Ex. C-48, at 10.) Although Professor Radicati was not informed of the GAC advice31, that alone does not undermine his determination that there was no material detriment to the interests of the people inhabiting the Amazon region by awarding the applicant the.amazon string. Moreover, his findings regarding the absence of prejudice or detriment are consistent with and are supported by those of Dr. Passa, the NGPC's independent expert, who was well aware of the GAC objection to the string.
The NGPC did not analyze Professor Radicati's or Dr. Passa's reports in its resolution denying the applications. In absence of any statement of the reasons by the NGPC for denying the applications, beyond deference to the GAC advice, we conclude that the NGPC failed to act in a manner consistent with its obligation under the ICANN governance documents to make an independent, objective decision on the applications at issue. (See Bylaws, art. IV, § 3(4); Supplementary Procedures, Rule 8(iii).) Moreover, without such an explication of a reason indicating a well-founded public policy interest, the Panel is unable to discharge meaningfully its independent review function to determine whether the NGPC made an independent, objective and merits-based decision in this matter.

E. Was the NGPC required to state its reasons for its decision denying the applications?

Although the GAC was not required to state reasons for its action (see discussion supra at 34-35), under the circumstances presented in this matter we hold that, in order to comply with its governance documents, the Board, in this case the NGPC, was required to state reasons for its decision in order to satisfy the community that it rendered an independent and objective decision in this matter. "[A]ccountability requires an organization to explain or give reasons for its activities." (See DCA Trust, at ¶ 74; accord Vistaprint Ltd. v. ICANN, Case No. 01-14-0000-6505, Final Declaration, at ¶ 190 (Int'l Centre for Dispute Resolution, Oct. 9, 2015), https://www.icann.org /en/system/files/files/vistaprint-v-icann-final-declaration-09oct15-en.pdf [hereinafter Vistaprint] (stating that the Board's decisions should be "supported by a reasoned analysis.") (quoting Gulf Cooperation Council v. ICANN, Case No. 01-14-0002-1065, Interim Declaration on Emergency Request, at ¶ 76 (Int'l Centre for Dispute Resolution, Feb. 12, 2015) https://www.icann.org/en/system/files/files/interim-declaration-emergency-protection-redacted-12feb15-en.pdf).) Similar to GCC Final, para. 142, the NGPC resolution in this matter does not discuss the factors or reasons that led to its decision denying the applications, beyond the presumption flowing from GAC consensus advice. Suffice it to say, the minutes of the NGPC's May 14, 2014 meeting and its resolution adopted that date are bereft of a reasoned analysis.
To be clear, our limited holding is that under the facts of this IRP, where the NGPC is relying on GAC Advice and the GAC has provided no rationale or reason for its advice, the NGPC must state reasons why the GAC advice is supported by well-founded public interests. Otherwise, the NGPC is not acting in a transparent manner consistent with its Bylaws as there would be scant possibility of holding it accountable for its decision. (See Bylaws, art. I, § 2(8), art. III, § 1.) Here, the limited explanation of the NGPC is deficient. Certainly, there is no way that an independent review process would be able to assess whether an independent and objective decision was made, beyond reliance on the presumption, in denying the applications. The NGPC failed to articulate a well-founded public policy reason supporting its decision. In the event the NGPC was unable to ascertain and state a valid public policy interest for its decision, it had a due diligence duty to further investigate before rejecting Amazon's applications. (Supplementary Procedures, Rule 8(ii); see also DCA Trust, at ¶ 74.)

F. Absent a well-founded public policy reason, did the NGPC impermissibly give the GAC consensus advice a conclusive presumption?

Implicit in the NGPC resolution is that the GAC advice was based on concerns stated by Brazil and Peru in their Early Warning Notice and that the reasons given in the Early Warning Notice by Brazil and Peru for objecting were based on valid, legitimate and credible public policy concerns. An Early Warning Notice, in and of itself, is not reason for rejecting an application. At a minimum, it would require that the Board independently find that the reason(s) for the objections stated therein reflect a well- founded public policy interest. As there is no explanation in the NGPC resolution why any of the reasons given by Brazil and Peru supported its decision to reject the applications, we have concluded above that there was not a sufficient statement of the reasons by the NGPC to satisfy the requirement of the Bylaws that the Board give reasons for its decisions.
In his testimony, Mr. Atallah acknowledged that ICANN is not controlled by governments, even when governments, through the GAC, provide consensus advice. (Atallah Tr., 94-95.) Consensus advice from the GAC is entitled to a strong presumption that it is based on valid public policy interests, but not a conclusive presumption. In its governance documents, ICANN could have given consensus GAC advice a conclusive presumption or a veto, but it chose not to do so.
Yet in this matter, Mr. Atallah candidly admitted that when the GAC issued consensus advice against Amazon's applications, the bar was too high for the Board (NGPC) to say "no." (Atallah Tr., 100-101, 128.) Clearly, the NGPC deferred to the consensus GAC advice regarding the existence of a valid public policy concern and by so doing, it abandoned its obligation under ICANN governance documents to make an independent, merits-based and objective decision whether or not to allow the applications to proceed. By failing to independently evaluate and articulate the existence of a well-founded public policy reason for the GAC advice, the NGPC, in effect, created a conclusive or irrebuttable presumption for the GAC consensus advice. In essence, it conferred on the GAC a veto over the applications; something that went beyond and was inconsistent with ICANN's own rules.
Moreover, as observed above, we are unable to discern from the Early Warning Notice a well-founded public policy reason for the NGPC's action. There being none evident, and none stated by the NGPC, much less the GAC, the only rationale supporting the NGPC's decision appears to be the strong presumption of a public policy interest to be accorded to GAC consensus advice. But as that is the only basis in the record supporting the NGPC's decision, to let the NGPC decision stand would be tantamount to converting the strong presumption into a conclusive one and, in effect, give the GAC a veto over the gTLD applications. This would impermissibly change the rules developed and adopted in the Guidebook. And it would also run afoul of two important governance principles of ICANN:

That the Board state reasons for its decisions; and

That the Board make independent and objective decisions on the merits.

It is noteworthy that, while the NGPC's resolution listed many documents that it considered, the NGPC did not explain how those documents may or may not have affected its own reasons or rationale for denying Amazon's applications, other than its reference to the GAC consensus advice and its presumption. Moreover, nowhere does the NGPC explain why rejecting Amazon's application is in the best interest of the Internet community, especially where a well-founded public policy interest for the GAC advice is not evident.
Under these circumstances, the NGPC's decision rejecting the Amazon application is inconsistent with it governance documents and, therefore, cannot stand.

G. Did the NGPC violate ICANN's prohibition against disparate treatment when it denied the applications?

Amazon argues that the NGPC discriminated against it by denying its application for.amazon, yet an application by a private Brazilian oil company for the string.ipiranga, another famous waterway in Brazil, was approved. Amazon contends that by approving.ipiranga and denying.amazon, the ICANN Board, here the NGPC, engaged in disparate treatment in violation of Article II, Section 3 of the Bylaws.
It is accurate that ICANN's Bylaws prohibit discriminatory treatment by the Board in applying its policies and practices regarding a particular party "unless justified by substantial and reasonable cause." (Bylaws, art. II, § 3.) As pointed out by ICANN's counsel, in this instance neither the Board nor NGPC, acting on its behalf, considered, much less granted, the application for.ipiranga and, therefore, did not engage in discriminatory action against Amazon. We agree. In the context of this matter, the Bylaws' proscription against disparate treatment applies to Board action, and this threshold requirement is missing. Thus, we do not find the NGPC impermissibly treated these applications differently in a manner that violated Article II, Section 3 of the Bylaws regarding disparate treatment.

H. Was Amazon's objection to changes to the applicant guidebook untimely?

In essence, Amazon argued that the GAC was required to state reasons for its advice under earlier iterations of the Guidebook. To the extent that earlier versions of the Guidebook supported Amazon's contention, the Guidebook was changed in 2012 and earlier requirements that the GAC state reasons for its advice or provide specific information were deleted. ICANN's launch documents, ICANN argued, are even more explicit regarding this change.
We agree with ICANN that to the extent that Amazon is challenging Guidebook changes made in 2011 in this proceeding, its attempt to do so is untimely. (See Booking.com B.V. v. ICANN, Case No. 50-20-1400-0247, Final Declaration, at ¶ 106 (Int'l Centre for Dispute Resolution, March 3, 2015), https://www.icann.org/en/system /files/files/final-declaration-03mar15-en.pdf; Vistaprint, at ¶ 172.) Any disagreement with proposed changes to the Guidebook must be made within 30 days of the notice of proposed amendments to the Guidebook. (See Bylaws, Art. IV, § 3.3.)


Based upon the foregoing, we declare that Amazon has established that ICANN's Board, acting through the NGPC, acted in a manner inconsistent with ICANN's Bylaws, as more fully described above. Further, the GAC, as a constituent body of ICANN, failed to allow the applicant to submit any information to the GAC and thus deprived the applicant of the minimal degree of procedural fairness before issuance of its advice, as required by the Bylaws. The failure by the GAC to accord procedural fairness diminishes the presumption that would otherwise attach to its consensus advice.
The Panel recommends that the Board of ICANN promptly re-evaluate Amazon's applications in light of the Panel's declarations above. In its re-evaluation of the applications, the Board should make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon's applications. Further, if the Board determines that the applications should not proceed, the Board should explain its reasons supporting that decision. The GAC consensus advice, standing alone, cannot supplant the Board's independent and objective decision with a reasoned analysis. If the Board determines that the applications should proceed, we understand that ICANN's Bylaws, in effect, require the Board to "meet and confer" with the GAC. (See Bylaws, Article XI, § 2.1(j).) In light of our declaration, we recommend that ICANN do so within sixty (60) days of the issuance of this Final Declaration. As the Board is required to state reasons why it is not following the GAC consensus advice, we recommend the Board cite this Final Declaration and the reasons set forth herein.
We conclude that Amazon is the prevailing party in this matter. Accordingly, pursuant to Article IV, Section 3(18) of the Bylaws, Rule 11 of ICANN's Supplementary Procedures and Article 31 of the ICDR Rules, ICANN shall bear the costs of this IRP as well as the cost of the IRP provider. The administrative fees and expenses of the International Centre for Dispute Resolution (ICDR) totaling US$5,750 shall be borne by ICANN and the compensation and expenses of the Panelists totaling US$314,590.96 shall be borne by ICANN. Therefore, ICANN shall reimburse Amazon the sum of US$163,045.51, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by Amazon.
Each side will bear its own expenses and attorneys' fees.
Our learned co-panelist, Judge A. Howard Matz, concurs in the result. Attached hereto is Judge Matz's separate concurring and partially dissenting opinion.
Subsequent citations of this document as a whole:
Subsequent citations of this excerpt:
Click on the text to select an element Click elsewhere to unselect an element
Select a key word :
1 /

Instantly access the most relevant case law, treaties and doctrine.

Start your Free Trial

Already registered ?