|Afilias||Claimant Afilias Domains No. 3 Limited.|
|Afilias’ First DIDP Request||Documentary Information Disclosure Policy request submitted by Afilias to ICANN on 23 February 2018.|
|Afilias' Response to the Amici’s Brief||Afilias’ Response to the Amici Curiae Briefs dated 24 July 2020.|
|Amended Request for IRP||Afilias’s Amended Request for Independent Review dated 21 March 2019.|
|Amici||Collectively, Verisign, Inc. and Nu DotCo, LLC.|
|Amici’s PHB||Verisign, Inc. and Nu DotCo, LLC’s post-hearing brief dated 12 October 2020.|
|Articles||Amended and Restated Articles of Incorporation of Internet Corporation for Assigned Names and Numbers, as approved by the Board on 9 August 2016, and filed on 3 October 2016, Ex. C-2.|
|Auction Rules||Power Auctions LLC’s Auction Rules for New gTLDs: Indirect Contentions Edition, Ex. C-4.|
|Board||ICANN’s board of directors.|
|Blackout Period||Period associated with an ICANN auction extending from the deposit deadline until full payment has been received from the prevailing bidder, and during which discussions among members of a contention set are prohibited.|
|Bylaws||Bylaws for Internet Corporation for Assigned Names and Numbers, as amended 18 June 2018, Ex. C-1.|
|CCWG||The Cross-Community Working Group for Accountability created by ICANN’s supporting organizations and advisory committees to review and advise on ICANN’s accountability mechanisms.|
|CEP||ICANN’s Cooperative Engagement Process, as described in Article 4, Section 4.3(e) of the Bylaws, intended to help parties to a potential IRP resolve or narrow the issues that might need to be addressed in the IRP.|
|CEP Rules||Rules applicable to a Cooperative Engagement Process described in an ICANN document dated 11 April 2013, Ex. C-121.|
|Claimant||Afilias Domains No. 3 Limited.|
|Claimant’s PHB||Afilias’ post-hearing brief dated 12 October 2020.|
|Claimant’s Reply||Afilias’ Reply Memorial in Support of Amended Request by Afilias Domains No. 3 Limited for Independent Review dated 4 May 2020.|
|Claimant’s Reply Submission on Costs||Afilias’ reply dated 23 October 2020 to the Respondent’s submissions on costs.|
|Covered Actions||As defined at Section 4.3(b)(ii) of the Bylaws : “any actions or failures to act by or within ICANN committed by the Board, individual Directors, Officers, or Staff members that give rise to a Dispute”.|
|DAA, or Domain Acquisition Agreement||Domain Acquisition Agreement between Verisign, Inc. and Nu DotCo, LLC dated 25 August 2015, Ex. C-69.|
|Decision on Phase I||Panel’s decision on Phase I dated 12 February 2020.|
|DIDP||ICANN’s Documentary Information Disclosure Policy.|
|DNS||Domain Name System.|
|DOJ||United States Department of Justice.|
|Donuts||Donuts, Inc., the parent company of .WEB applicant Ruby Glen, LLC.|
|Donuts CEP||Cooperative engagement process invoked by Donuts on 2 August 2016 in regard to .WEB.|
|First Procedural Order||Panel’s first procedural order for Phase II, dated 5 March 2020.|
|gTLD||Generic top-level domain.|
|Guidebook||ICANN’s New gTLD Applicant Guidebook, Ex. C-3.|
|ICANN, or Respondent||Respondent Internet Corporation for Assigned Names and Numbers.|
|ICANN’s Response to the Amici's Briefs||ICANN’s response dated 24 July 2020 to the amici curiae briefs.|
|ICDR||International Centre for Dispute Resolution.|
|ICDR Rules||International Arbitration Rules of the ICDR.|
|Interim Procedures||Interim Supplementary Procedures for Internet Corporation for Assigned Names and Numbers' Independent Review Process, Ex. C-59.|
|IOT||Independent Review Process Implementation Oversight Team.|
|IRP||Independent Review Process provided for under ICANN's Bylaws.|
|Joint Chronology||Chronology of relevant facts dated 23 October 2020, agreed to by the Parties and the Amici pursuant to the Panel's communication dated 16 October 2020.|
|NDC||Amicus Curiae Nu DotCo, LLC.|
|NDC's Brief||Nu DotCo, LLC's amicus curiae brief dated 26 June 2020.|
|New gTLD Program Rules||Collectively, ICANN's New gTLD Applicant Guidebook, Ex. C-3, and the Power Auctions LLC's Auction Rules for New gTLDs: Indirect Contentions Edition, Ex. C-4.|
|November 2016 Workshop||Workshop held by the Board on 3 November 2016 during which a briefing was presented by in-house counsel regarding the .WEB contention set.|
|Panel||The Panel appointed to resolve Claimant's IRP in the present case.|
|Phase I||First phase of this Independent Review Process which concluded with the Panel's Decision on Phase I dated 12 February 2020.|
|Procedural Order No. 2||Panel's second procedural order for Phase II dated 27 March 2020.|
|Procedural Order No. 3||Panel's third procedural order for Phase II dated 27 March 2020.|
|Procedural Order No. 4||Panel's fourth procedural order for Phase II dated 12 June 2020.|
|Procedural Order No. 5||Panel's fifth procedural order for Phase II dated 14 July 2020.|
|Procedural Order No. 6||Panel's sixth procedural order for Phase II dated 27 July 2020.|
|Procedural Timetable||Procedural timetable for Phase II attached to the First Procedural Order dated 5 March 2020.|
|Questionnaire||Questionnaire issued by ICANN on 16 September 2016.|
|Reconsideration Request 18-7||Reconsideration request submitted by Afilias challenging ICANN’s response to its First Documentary Information Disclosure Policy Request.|
|Reconsideration Request 18-8||Reconsideration request submitted by Afilias challenging ICANN’s response to its Second Documentary Information Disclosure Policy Request.|
|Request for Emergency Interim Relief||Afilias’ Request for Emergency Panelist and Interim Measures of Protection, dated 27 November 2018.|
|Respondent, or ICANN||Respondent Internet Corporation for Assigned Names and Numbers.|
|Respondent’s Answer||ICANN’s Answer to the Amended Request for IRP dated 31 March 2019.|
|Respondent’s PHB||ICANN’s post-hearing brief dated 12 October 2020.|
|Respondent’s Rejoinder||ICANN’s Rejoinder Memorial in Response to Amended Request by Afilias Domains No. 3 Limited for Independent Review dated 1 June 2020.|
|Respondent’s Response Submission on Costs||ICANN’s response dated 23 October 2020 to the Claimant’s submissions on costs.|
|Revised Procedural Timetable||Revised procedural timetable for Phase II attached to the Procedural Order No. 3 dated 13 March 2020.|
|Ruby Glen||Ruby Glen, LLC.|
|Ruby Glen Litigation||Ruby Glen, LLC’s complaint against ICANN filed in the US District Court of the Central District of California and application seeking to halt the .WEB auction.|
|Rule 7 Claim||Afilias’ claim that ICANN violated its Bylaws in adopting the amicus curiae provisions set out in Rule 7 of the Interim Procedures.|
|Second DIDP Request||Documentary Information Disclosure Policy request submitted by Afilias to ICANN on 23 April 2018.|
|Supplemental Submission||Afilias' supplemental submission dated 29 April 2020 adding an additional argument in favour of a broader document production by ICANN.|
|Verisign||Amicus Curiae Verisign, Inc.|
|Verisign’s Brief||Verisign, Inc.’s amicus curiae brief dated 26 June 2020.|
|10 June Application||Afilias’ application dated 10 June 2020 regarding the status of the evidence originating from the Amici which had been filed with the Respondent’s Rejoinder.|
|29 April 2020 Application||Afilias’ application seeking assistance from the Panel regarding ICANN’s document production and privilege log.|
(a) committed by the Board; or
(b) committed by Staff members;
but not over actions or failures to act allegedly committed by the IRP Implementation Oversight Team (IOT), on the ground that the latter does not fall within the enumeration “Board, individual Directors, Officers or Staff members” in the definition of Covered Actions at Section 4.3(b)(ii) of the Bylaws.
|1.||Simultaneous requests to produce (via Redfern Schedules)||Afilias and ICANN||6 March 2020|
|2.||Simultaneous responses/objections (via Redfern Schedules)||Afilias and ICANN||13 March 2020|
|3.||List of agreed issues to be decided in Phase II and, as the case may be, list(s) of additional issues to be decided in Phase II||Afilias and ICANN||13 March 2020|
|4.||Simultaneous replies to responses/objections (via Redfern Schedules)||Afilias and ICANN||20 March 2020|
|5.||Hyperlinked list of constituent elements (as of that date) of the Phase II record||Afilias and ICANN||20 March 2020|
|6.||Panel ruling on outstanding objections||N/A||27 March 2020|
|7.||Production of documents||Afilias and ICANN||17 April 2020|
|8.||Submissions on questions as to which the Amici will be permitted to submit briefings to the Panel, as well as page limits and other modalities||Afilias, ICANN, Verisign and NDC||24 April 2020|
|9.||Reply (along with all supporting exhibits, witness statements, expert reports and legal authorities)||Afilias||1 May 2020|
|10.||Rejoinder (along with all supporting exhibits, witness statements, expert reports and legal authorities)||Afilias||29 May 2020|
|11.||Amici’s Briefs (along with all supporting exhibits, if any, and legal authorities)||Verisign and NDC||26 June 2020|
|12.||Simultaneous Responses to the Amici’s Briefs||Afilias and ICANN||15 July 2020|
|13.||Parties to identify witnesses called for cross-examination at the hearing||Afilias and ICANN||24 July 2020|
|14.||Final status and pre-hearing conference||Afilias, ICANN, Verisign and NDC||29 July 2020|
|15.||Hearing||Afilias, ICANN, Verisign and NDC||3-7 August 2020|
|16.||Post-hearing submissions||Afilias, ICANN, Verisign and NDC||TBD|
In its Decision on Phase I, the Panel made clear that, under the Interim Procedures, the Amici are non-disputing parties whose participation in the IRP is through the submission of “written briefings”, possibly supplemented by oral submissions at the merits hearing. The Panel also rejected the notion that, under the Interim Procedures, the Amici can enjoy the same participation rights as the disputing parties. It follows that it is for the Parties, who bear the burden of proving their case, to build the evidentiary record of the IRP, and it is based on that record that the Amici “may submit to the IRP Panel written briefing(s) on the DISPUTE or on such discrete questions as the IRP Panel may request briefing” (see Rule 7 of the Interim Procedures).
The Panel expects the Parties, in accordance with the Procedural Timetable, to file the entirety of the remainder of their case as part of the second round of submissions contemplated by the timetable, that is to say, with the Claimant's Reply and the Respondent's Rejoinder. As evoked in the Panel's Decision on Phase I (see par. 201), if there is evidence in the possession of the Amici that the Respondent considers relevant to, and that it wishes to adduce in support of its case, be it witness or documentary evidence, that evidence is required to be filed as part of the Respondent's Rejoinder, and not with the Amici’s Briefs.
The Panel did not preclude the possibility in its Phase I Decision (and the Procedural Timetable) that the Amici might wish to file documents in support of the submissions to be made in their Briefs. By referring to such documents as “exhibits”, however, as other arbitral tribunals have in referring to materials to be filed with the submissions of amicus participants, the Panel did not mean to suggest that these “exhibits” (which the Panel would expect to be few in number, and to be directed to supporting the Amici’s submissions, not the Respondent's case) would become part of the record and acquire the same status as the documentary evidence filed by the Parties.
Should a Party be of the view that documents submitted in support of the Amici’s Briefs are incomplete or somehow misleading, it will be open to that Party to advance the argument in response to the Amici’s submissions and to seek whatever relief it considers appropriate from the Panel.10
17. The Respondent has filed a Rejoinder seeking to draw a distinction between the Respondent’s evidence, filed without reservation in support of the Respondent’s primary case, and the “Amici’s evidence”, which the Respondent states it is filing “on behalf of the Amici” “to help ensure that the factual record in this IRP is complete”. However, the Respondent files this Amici evidence with the caveat that it is neither endorsing it, nor agreeing with it in full, as set out in the above quoted footnote 6 of the Rejoinder.
18. In the Panel’s view, the Respondent is thus seeking to do indirectly what the Panel decided in Phase I could not be done directly under the terms of the Interim Procedures. Instead of the Amici filing their own evidence with their Briefs, the Respondent has allowed the Rejoinder to serve as a vehicle for the filing of the “Amici’s evidence”, the “Amici expert reports and witness statements”. This is indeed how the Respondent describes that evidence in its 15 June 2020 correspondence. The fact that the Rejoinder serves as a vehicle for the filing of what is, in effect, the Amici's evidence is consistent with the Respondent’s proposal, in its submissions of 22 June 2020 relating to the modalities of the merits hearing (discussed below), that “the Amici be permitted to [...] introduced and conduct redirect examination of their own witnesses” (Respondent’s letter of 22 June 2020, p. 2, para. 3 [emphasis added in PO5]).
19. The Respondent explains, in its 15 June response, that the purpose of the so-called “Amici evidence” is to address the Claimant’s challenge of the Amici's conduct. The Respondent goes on to explain [emphasis added in PO5]:
Given that ICANN has not fully evaluated the competing contentions of Afilias and the Amici, for reasons ICANN explains at length in its Rejoinder, ICANN is not in a position to identify the portions of the Amici witness statements with which it “agrees or disagrees.” But ICANN views it as essential that this evidence be of record, and that the Panel consider it, if the Panel decides to address the competing positions of Afilias and Amici regarding the latter’s conduct.
20. The Panel understands the resulting procedural posture to be as follows. The Respondent has adduced evidence in support of its primary case that the ICANN Board, in the exercise of its fiduciary duties, made a decision that is both consistent with ICANN’s Articles and Bylaws and within the realm of reasonable business judgment when, in November 2016, it decided not to address the issues surrounding .WEB while an Accountability Mechanism regarding .WEB was pending. That, according to the Respondent, should define the proper scope of the present IRP.
21. However, recognizing that the Claimant’s case against the Respondent includes allegations concerning the Amici’s conduct (specifically, NDC’s alleged non-compliance with the Guidebook and Auction Rules), the Respondent files the “Amici evidence” on the ground that the record should include not only Afilias’ allegations against Verisign and NDC, “but also Verisign’s and NDC’s responses.” The difficulty is that this evidence is propounded not as the Respondent’s defense to Afilias’ claims against it, but rather (on the ground that the Respondent has not fully evaluated the competing contentions of Afilias and the Amici) as the Amici's response to Afilias’ allegations that NDC violated the Guidebook and Auction Rules.
22. The Panel recalls that this IRP is an ICANN Accountability Mechanism, the parties to which are the Claimant and the Respondent. As such, it is not the proper forum for the resolution of potential disputes between Afilias and two non-parties that are participating in these proceedings as amici curiae. While it is open to the Respondent to choose how to respond to the Claimant’s allegations concerning NDC’s conduct, and to evaluate the consequences of its choice in this IRP, the Panel is of the view that the Respondent may not at the same time as it elects not to provide a direct response, adduce responsive evidence on that issue on behalf of the Amici and, in relation to that evidence, reserve its position as to which portions thereof the Respondent endorses or agrees with. In the opinion of the Panel, this leaves the Claimant uncertain as to the case it has to meet, which the Panel considers unfair, and it has the potential to disrupt the proceedings if the Respondent were later to take a position, for example in its post-hearing brief, which the Claimant would not have had the opportunity to address prior to, or at the merits hearing.
23. The Panel has taken due note of the Respondent's evidence and associated contentions concerning its Board's decision of November 2016. Nevertheless, the Guidebook and Auction Rules originate from ICANN. That being so, in this ICANN Accountability Mechanism in which the Respondent's conduct in relation to the application of the Guidebook and Auction Rules is being impugned, the Respondent should be able to say whether or not the position being defended by the Amici in relation to these ICANN instruments is one that ICANN is prepared to endorse and, if not, to state the reasons why.
37. In the Panel's opinion, the Supreme Court's reasoning directly applies, and defeats the Claimant's claim of implied waiver. While the Respondent has disclosed the fact that its Board received legal advice before deciding to defer acting upon Afilias' complaints, the Respondent did not disclose the content of counsel's advice. Nor is the Respondent asserting that the Board's decision was consistent with counsel's advice, or that the Board's decision was reasonable because it followed counsel's advice. Disclosure of the fact that the Board solicited and received legal advice does not entail waiver of privilege as to the content of that advice. If that were so, the Respondent's compliance with the Panel's directions concerning the contents of the privilege log to be filed in support of its claims of privilege would, in of itself, waive the privilege that the privilege log serves to protect.
[emphasis in the original]
(1) that ICANN has acted inconsistently with its Articles and Bylaws, breached the binding commitments contained in the AGB, and violated international law;
(2) that, in compliance with its Articles and Bylaws, ICANN must disqualify NDC’s bid for .WEB for violating the AGB and Auction Rules;
(3) ordering ICANN to proceed with contracting the Registry Agreement for .WEB with Afilias in accordance with the New gTLD Program Rules;
(4) specifying the bid price to be paid by Afilias;
(5) that Rule 7 of the Interim Procedures is unenforceable and awarding Afilias all costs associated with the additional work needed to, among other things, address arguments and filings made by Verisign and/or NDC;
(6) declaring Afilias the prevailing party in this IRP and awarding it the costs of these proceedings; and
(7) granting such other relief as the Panel may consider appropriate in the circumstances.72
According to the Claimant, the evidence of these witnesses demonstrates that they harboured serious doubts as to whether they were acting in compliance with the Program Rules; otherwise, why conceal the DAA’s terms from ICANN’s scrutiny, and keep Verisign’s involvement in NDC’s application hidden from the Internet community? In sum, the Claimant submits that the Amici's conduct evidence an attempt to “cheat the system”.182
4. Time for Filing3
An INDEPENDENT REVIEW is commenced when CLAIMANT files a written statement of a DISPUTE. A CLAIMANT shall file a written statement of a DISPUTE with the ICDR no more than 120 days after a CLAIMANT becomes aware of the material effect of the action or inaction giving rise to the DISPUTE; provided, however, that a statement of a DISPUTE may not be filed more than twelve (12) months from the date of such action or inaction.
In order for an IRP to be deemed to have been timely filed, all fees must be paid to the ICDR within three business days (as measured by the ICDR) of the filing of the request with the ICDR.
3 The IOT recently sought additional public comment to consider the Time for Filing rule that will be recommended for inclusion in the final set of Supplementary Procedures. In the event that the final Time for Filing procedure allows additional time to file than this interim Supplementary Procedure allows, ICANN committed to the IOT that the final Supplementary Procedures will include transition language that provides potential claimants the benefit of that additional time, so as not to prejudice those potential claimants.
[...] agreed at some point and finalized language on a footnote that would confirm that if there was a future change in a deadline for time for filing, that ICANN would work to make sure no one was prejudiced by that. [...]
The footnote that was included in the Rule 4 was about the change between the -- we are putting the interim rules into effect. And then if in the future a discussion where people were suggesting that there should be basically no statute of limitations on the ability to challenge an act of ICANN, if that were to be the predominant view, and what the Board put into effect that there would be some sort of stopgap measure put in so that anyone who was not able to file under the interim rules and the timing set out there but could have filed if the other rules, the broader rules had been in effect, that we would put in a stopgap to make sure that no one was prejudiced by that differentiation because we had agreed on a different timing for the final set.240
• The Respondent only launched the solicitation of public comments concerning the addition of timing requirements to the draft procedures governing IRPs on 22 June 2018, shortly after Afilias filed its CEP;
• In spite of the fact that the public comment period on proposed Rule 4 remained open, Rule 4 was included in the proposed Interim Procedures presented to the Board for approval on 25 October 2018;
• Having received a draft of the Claimant’s IRP in the context of its CEP on 10 October 2018, the Respondent decided to give retroactive effect to the Interim Procedures to 1 May 2018, six (6) weeks prior to the initiation of the Claimant’s CEP, with no carve-out for pending CEPs (of which there were several) or IRPs (of which there was none); and
• Having terminated the Claimant's CEP on 13 November 2018, and received its IRP on 14 November 2018, the Respondent was able to rely on the retroactive application of the Interim Procedures to support its Rule 4 time limitations defence.
(i) Each IRP Panel shall conduct an objective, de novo examination of the Dispute.
(i) With respect to Covered Actions, the IRP Panel shall make findings of fact to determine whether the Covered Action constituted an action or inaction that violated the Articles of Incorporation or Bylaws.
(ii) All Disputes shall be decided in compliance with the Articles of Incorporation and Bylaws, as understood in the context of the norms of applicable law and prior relevant IRP decisions.
(iii) For Claims arising out of the Board's exercise of its fiduciary duties, the IRP Panel shall not replace the Board's reasonable judgment with its own so long as the Board's action or inaction is within the realm of reasonable business judgment.
The Corporation 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.[...]
In performing its Mission, ICANN must operate in a manner consistent with these 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, through open and transparent processes that enable competition and open entry in Internet-related markets. Specifically, ICANN commits to do the following (each, a "Commitment," and collectively, the "Commitments"):
(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.256
(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;
(v) Operating with efficiency and excellence, in a fiscally responsible and accountable manner and, where practicable and not inconsistent with ICANN's other obligations under these Bylaws, at a speed that is responsive to the needs of the global Internet community;257
To help facilitate informed resolution of these questions, ICANN would find it useful to have additional information.
Accordingly, ICANN invites Ruby Glen, NDC, Afilias, and Verisign, Inc. (Verisign) to provide information and comment on the topics listed in the attached. Please endeavor to respond to all of the topics/questions for which you have information to do so. To allow ICANN promptly to evaluate these matters, please provide response [...] no later than 7 October 2016.270
4. In his 8 August 2016, letter, Scott Hemphill stated: “A change in control can be effected by contract as well as by changes in equity ownership.” Do you think that an applicant's making a contractual promise to conduct particular activities in which it is engaged in a particular manner constitutes a “change in control” of the applicant? Do you think that compliance with such a contractual promise constitutes such a change in control? Please give reasons.
5. Do you think that AGB Section 1.2.7 requires an applicant to disclose to ICANN all contractual commitments it makes to conduct its affairs in particular ways? If not, in what circumstances (if any) would disclosure be required? [...]
7. Do you think that changes to an applicant's financial condition that do not negatively reflect on an applicant's qualifications to operate the gTLD should be deemed material? If so, why? Do you think that an applicant's obtaining a funding commitment from a third party to fund bidding at auction negatively affects that applicant's qualifications to operate the gTLD? Please explain why, describing your view of the relevance of (a) the funding commitment the applicant received and (b) the consideration the applicant gave to obtain that commitment (e.g., a promise to repay; a promise to use a particular backend provider; an option to receive some ownership interest in the applicant in the future; some promise about how the gTLD will be operated).[...]
9. Do you think that requiring applicants to disclose funding commitments (whether through loans, contributions from affiliated companies, or otherwise) they obtain for auction bids would help or harm the auction process? Would a requirement that applicants disclose their funding arrangements create problems for applicants (for example, making funding commitments harder to obtain)? To what extent, if any, do you think scrutinizing such arrangements (beyond determining whether they negatively reflect on an applicant's qualifications) would be within ICANN’s proper mission? Would required disclosure of applicants’ funding sources pose any threat to robust competition?
[...] our practice was that we respected those requests for confidentiality and we did not post those -- such correspondences, with one exception.
At some point if some other party asked for something to be published or it became desirable and relevant to something else, I recall, again, it's been years, so I don't recall a specific example, but as a general practice, I recall that ICANN might ask the sender if it would be possible to publish a letter, but we respected their requests for confidential correspondence.273
[...] . determining that NDC violated the Guidebook is not a simple analysis that is answered on the face of the Guidebook. There is no Guidebook provision that squarely addresses an arrangement like the DAA. A true determination of whether there was a breach of the Guidebook requires an in-depth analysis and interpretation of the Guidebook provisions at issue, their drafting history to the extent it exists, how ICANN has handled similar situations, and the terms of the DAA. This analysis must be done by those with the requisite knowledge, expertise, and experience, namely ICANN.276
• Whether, in entering into the DAA, NDC violated the Guidebook and, more particularly, the section providing that an “Applicant may not resell, assign, or transfer any of applicant's rights or obligations in connection with the application”.
• Whether the execution of the DAA by NDC constituted a “change in circumstances that [rendered] any information provided in the application false and misleading”.
• Whether by entering into the DAA after the deadline for the submission of applications for new gTLDs, and by agreeing with NDC provisions designed to keep the DAA strictly confidential, Verisign impermissibly circumvented the “roadmap” provided for applicants under the New gTLD Program Rules, and in particular the public notice, comment and evaluation process contemplated by these Rules.
10. In November 2016, the Board received a briefing from ICANN counsel on the status of, and issues being raised regarding, .WEB. The communications during that session, in which ICANN’s counsel, John Jeffrey (ICANN’s General Counsel) and Amy Stathos (ICANN’s Deputy General Counsel), were integrally involved, are privileged and, thus, I will not disclose details of those discussions so as to avoid waiving the privilege. I recall that, prior to this session, the Board received Board briefing materials directly from ICANN’s counsel that set forth relevant information about the disputes regarding .WEB, the parties’ legal and factual contentions and a set of options the Board could consider. During the session, Board members discussed these topics and asked questions of, and received information and advice from, ICANN's counsel.
11. At the November 2016 session, the Board chose not to take any action at that time regarding the claims arising from the .WEB auction, including the claim that, by virtue of the agreement between Verisign and NDC, NDC had committed violations of the Applicant Guidebook which merited the disqualification of its application for .WEB and the rejection of its winning bid. Given the Accountability Mechanisms that had already been initiated over .WEB, and given the prospect of further Accountability Mechanisms and legal proceedings, the Board decided to await the results of such proceedings before considering and determining what action, if any, to take at that time. [...]
• The workshop session of 3 November 2016 was separate and distinct from the actual Board meeting, which took place on 5 November 2016.282
• The session was attended by a significant number of Board members, in his estimation more than 50%.283 Also in attendance were ICANN's CEO, its in-house lawyers, and likely Mr. Atallah.284
• The letters that Afilias had sent Mr. Atallah were known to those in attendance and “would have been part of the briefing”;285 the Questionnaire prepared by ICANN in response to these letters was also known.286 However, the DAA, the 23 August 2016 letter sent on behalf of the Amici, and the Questionnaire were not part of the briefing materials.287
• There was a full and open discussion, that likely lasted more than fifteen (15) minutes.
• Rather than “proactively decide” or “agree” its course of action, the Board “made a choice” to follow its longstanding practice of not doing anything when there is a pending outstanding accountability mechanism.288
• The Board made this choice without the need for a vote, straw poll or show of hands.289
[PANEL MEMBER]: [...] If [...] an applicant had failed to respect the guidebook, but there had been no accountability mechanism to complain about that noncompliance, would you, by reason of the absence of an accountability mechanism, have sent a draft Registry Agreement for execution?
THE WITNESS: No, I don't believe we would have. If we determined that an applicant had violated the terms of the guidebook, I don't believe that my team and I would have given our approvals to proceed with contracting.302
[...] the Guidebook breaches that Afilias alleges are the subject of good faith dispute by NDC and Verisign, both of which are seeking to participate in this IRP pursuant to their amicus applications. [...] While Afilias' Amended IRP Request is notionally directed at ICANN, it is focused exclusively on the conduct of NDC and Verisign, to which NDC and Verisign have responses. [...]306
The testimony at the hearing established that there is a good-faith and fundamental dispute between Amici and Afilias about whether the DAA violated the Guidebook or Auction Rules, meaning that reasonable minds could differ on whether NDC is in breach of either and, if so, whether this qualification is the appropriate remedy. Accordingly, Afilias' additional argument that ICANN can only exercise its discretion reasonably by disqualifying NDC must be rejected.307
While ICANN’s mission includes the promotion of competition, this role is best fulfilled through the measured expansion of the name space and the facilitation of innovative approaches to the delivery of domain name registry services. Neither ICANN nor the GNSO have the authority or expertise to act as anti-trust regulators. Fortunately, many governments around the world do have this expertise and authority, and do not hesitate to exercise it in appropriate circumstances.313
(o) Subject to the requirements of this Section 4.3, each IRP Panel shall have the authority to:
(i) Summarily dismiss Disputes that are brought without standing, lack substance, or are frivolous or vexatious;
(ii) Request additional written submissions from the Claimant or from other parties;
(iii) Declare whether a Covered Action constituted an action or inaction that violated the Articles of Incorporation or Bylaws, declare whether ICANN failed to enforce ICANN's contractual rights with respect to the IANA Naming Function Contract or resolve PTI service complaints by direct customers of the IANA naming functions, as applicable;
(iv) Recommend that ICANN stay any action or decision, or take necessary interim action, until such time as the opinion of the IRP Panel is considered;
(v) Consolidate Disputes if the facts and circumstances are sufficiently similar, and take such other actions as are necessary for the efficient resolution of Disputes;
(vi) Determine the timing for each IRP proceeding; and
(vii) Determine the shifting of IRP costs and expenses consistent with Section 4.3(r).
[emphasis in the original]
(x) The IRP is intended as a final, binding arbitration process.
(i) IRP Panel decisions are binding final decisions to the extent allowed by law unless timely and properly appealed to the en banc Standing Panel. En banc Standing Panel decisions are binding final decisions to the extent allowed by law.
(ii) IRP Panel decisions and decisions of an en banc Standing Panel upon an appeal are intended to be enforceable in any court with jurisdiction over ICANN without a de novo review of the decision of the IRP Panel or en banc Standing Panel, as applicable, with respect to factual findings or conclusions of law.
(iii) ICANN intends, agrees, and consents to be bound by all IRP Panel decisions of Disputes of Covered Actions as a final, binding arbitration.
(A) Where feasible, the Board shall consider its response to IRP Panel decisions at the Board's next meeting, and shall affirm or reject compliance with the decision on the public record based on an expressed rationale. The decision of the IRP Panel, or en banc Standing Panel, shall be final regardless of such Board action, to the fullest extent allowed by law.
(B) If an IRP Panel decision in a Community IRP is in favor of the EC, the Board shall comply within 30 days of such IRP Panel decision.
(C) If the Board rejects an IRP Panel decision without undertaking an appeal to the en banc Standing Panel or rejects an en banc Standing Panel decision upon appeal, the Claimant or the EC may seek enforcement in a court of competent jurisdiction. In the case of the EC, the EC Administration may convene as soon as possible following such rejection and consider whether to authorize commencement of such an action.
(iv) By submitting a Claim to the IRP Panel, a Claimant thereby agrees that the IRP decision is intended to be a final, binding arbitration decision with respect to such Claimant. Any Claimant that does not consent to the IRP being a final, binding arbitration may initiate a non-binding IRP if ICANN agrees; provided that such a non-binding IRP decision is not intended to be and shall not be enforceable.
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