In alignment with the base registry agreement, the price control provisions in the current.ORG agreement, which limited the price of registrations and allowable price increases for registrations, are removed from the.ORG renewal agreement. Protections for existing registrants will remain in place, in line with the base registry agreement. This change will not only allow the.ORG renewal agreement to better conform with the base registry agreement, but also takes into consideration the maturation of the domain name market and the goal of treating the Registry Operator equitably with registry operators of new gTLDs and other legacy gTLDs utilizing the base registry agreement.
IRP Request at 21, Annex 2; Cl. ER Brief at 14.
There are now over 1200 generic top-level domains available, and all but a few adhere to a standard contract that does not contain price regulation. Removing the price control provisions in the.ORG Registry Agreement is consistent with the Core Values of ICANN org as enumerated in the Bylaws approved by the ICANN community. These values guide ICANN org to introduce and promote competition in the registration of domain names and, where feasible and appropriate, depend upon market mechanisms to promote and sustain a competitive environment in the DNS market.
IRP Request at 23, Annexes 5-7; CL. ER Brief at 15. Namecheap contends these conclusions and the various pricing accommodations ignore significant information and turn a blind eye to budget planning for registrars and their customers. IRP Request at 24; Cl. ER Brief at 16-17.
- stay all actions that further the change of control of the.ORG registry operator to a for profit entity during the pendency of the IRP, including but not limited to, staying all actions that would lead to (i) the renewal of any registry agreement for.ORG, (ii) the approval of any direct or indirect change of control of the.ORG registry operator or of any other assignment of the.ORG registry agreement;
- take all actions that are necessary to prevent that the.ORG registry operator can charge fees to ICANN-accredited registrars for new and renewal domain name registrations and for transferring a domain name registration from one ICANN-accredited registrar to another that are exceeding the maximum fees that were applicable before the execution of the.ORG registry agreement of 30 June 2019;
- ICANN pay costs and for any other relief that the Emergency Panelist may consider necessary or appropriate in the circumstances. Cl. ER Brief at 56.
[ICANN] shall operate in a manner consistent with these Articles and its Bylaws for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law and through open and transparent processes that enable competition and open entry in Internet-related markets….
This provision requirement is reiterated in the Commitments provision in ICANN's Bylaws, Section 1.2.(a).
(iv) Employ open, transparent and bottom-up, multistakeholder policy development processes that are led by the private sector (including business stakeholders, civil society, the technical community, academia, and end users), while duly taking into account the public policy advice of governments and public authorities. These processes shall (A) seek input from the public, for whose benefit ICANN in all events shall act, (B) promote well-informed decisions based on expert advice, and (C) ensure that those entities most affected can assist in the policy development process;
(v) Make decisions by applying documented policies consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment (i.e., making an unjustified prejudicial distinction between or among different parties); and,
(vi) Remain accountable to the Internet community through mechanisms defined in these Bylaws that enhance ICANN's effectiveness.
(i) To the extent feasible and appropriate, delegating coordination functions to or recognizing the policy role of, other responsible entities that reflect the interests of affected parties and the roles of bodies internal to ICANN and relevant external expert bodies;
(ii) 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 to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent;
(iii) Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment in the DNS market…
(iv) Introducing and promoting competition in the registration of domain names where practicable and beneficial to the public interest as identified through the bottom-up, multistakeholder policy development process;
ICANN shall not apply its standards, policies, procedures, or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause, such as the promotion of effective competition.
ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness, including implementing procedures to (a) provide advance notice to facilitate stakeholder engagement in policy development decision-making and cross-community deliberations, (b) maintain responsive consultation procedures that provide detailed explanations of the basis for decisions (including how comments have influenced the development of policy considerations), and (c) encourage fact-based policy development work.
A Claimant may request interim relief. Interim relief may include prospective relief, interlocutory relief, or declaratory or injunctive relief, and specifically may include a stay of the challenged ICANN action or decision until such time as the opinion of the IRP Panel is considered […], in order to maintain the status quo. […] Interim relief may only be provided if the Emergency Panelist determines that the Claimant has established all of the following factors:
(i) A harm for which there will be no adequate remedy in the absence of such relief;
(ii) Either: (A) likelihood of success on the merits; or (B) sufficiently serious questions related to the merits; and
(iii) A balance of hardships tipping decidedly toward the party seeking relief.
A. Claimant Namecheap, Inc.'s request for interim relief is denied.
B. As stipulated by the parties, any award of costs and fees is to be decided by the IRP Panel and, accordingly, no costs or fees are awarded at this time.
This Decision is an Interim Order and does not constitute an IRP Decision or settlement of the claim submitted in this IRP. In accordance with the ICDR Arbitration Rules, this Decision may be accepted, rejected or revised by the duly appointed IRP Panel.
I hereby certify this Decision was made in Los Angeles, California, United States of America.
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