The IRP Panel that was tasked with deciding the Booking.com vs. ICANN IRP that was filed regarding the application for the .hotels new gTLD name has made a decision that seems favorable to ICANN as the Defendant. However, this is not a victory for ICANN but an indictment of the ICANN procedures and accountability systems which are widely viewed as detrimental to new gTLD applicants. The result mirrors a negotiated dispute resolution outcome that is costly and only returns the applicant to an auction with its competitor — Despegar Online's who applied for .hoteis — that is in contention for the same (or similar) string name.
Reading between the lines, perhaps, the IRP was wrongly filed and lost based on a technicality, but this does not mean that ICANN has been victorious. It is possible to assume that this middle-ground ruling was also 'negotiated' to enable Booking.com win via an auction, since the issue was string similarity, and an auction process could be also be used to settle a string similarity/contention set.
Board Member's Reactions:
Technical details that have been raised in the ruling include the Panel's reiteration of the ICANN Board members' hesitations over the string similarity panel findings saying:
"There is no question but that process lacks certain elements of transparency and certain practices that are widely associated with requirements of fairness."
They also stated that:
"We can — and we do — acknowledge certain legitimate concerns regarding the string similarity review process raised by Booking.com, discussed above, which are evidently shared by a number of prominent and experienced ICANN NGPC members."
Some of the statements quoted by the ICANN NGPC members at a September 10th 2013 meeting where four board members abstained from the vote, with five voting in favor including —
George Sadowsky who stated that: "they understood that the BGC did the right thing, but thought the end result was contrary to ICANN's and the user's best interests. George noted he intended to abstain from voting as a result." He concluded in his statement that "I cannot and will not vote in favor of a motion that reflects, directly or indirectly, an unwillingness to depart from what I see as such a flawed position and which does not reflect in my opinion an understanding of the current reality of the situation."
Olga Madruga-Forti noted that she intended to abstain from the vote because "there was not sufficient rationale provided for why the string similarity review panel made its determination".
Ray Plzak also abstained from the vote, saying that while the process was followed "it needs to be reviewed to potentially add a mechanism that would allow persons who don't agree with the outcome to make an objection."
Bill Graham who voted yes, however agreed with Ray's suggestion, and noted that generally, "there is a considerable level of discomfort and dissatisfaction with the process as expressed by Committee members." Sadly, ICANN board members were repeatedly informed that because the process had been followed, they had no choice but to deny the reconsideration request.
No Options for applicant
The expressions of concern within the technical issues in ICANN's own structure indicates systemic weaknesses and failures that are unable to provide appropriate reliefs and remedies that are seen as fair and just by all those seeking accountability review using ICANN's processes. Therefore when the .hotels/.hoteis application process failed almost from the start it means that applicants find themselves at an absolute loss. All the applicant complaint redress/internal dispute resolution procedures against ICANN Board or Staff actions such as the ICANN's Ombudsman, reconsideration requests, Cooperative Engagement Process (CEP) and the IRP must not remain weak options for the applicants.
Looking at the IRP Panel's decision, ICANN is not an outright winner and it is just the beginning of an indicative voice to find a permanent solution to its recourse mechanism.
An IRP Process is about accountability and not a negotiated resolution
IRP is a procedure-based juridical inquiry into ICANN Board or ICANN Staff actions. Therefore any IRP Decision that looks like a 'resolution' does not in any way further the cause of ICANN accountability improvements; nor adds any legal precedence value to IRP-based Alternate Dispute Resolution (ADR) processes. The persistent issue that remains is that the ICANN system for recourse by applicants has not been fixed and that means it is broken and will continue to affect applicants materially — including the time and money wasted in pursuing accountability through the IRP Process.
Lack of ICANN's accountability should be subject to due process in court of law
Therefore, ICANN should not engage on any premature ululation regarding this particular Booking.com IRP outcome; rather ICANN should be very troubled that there may be need for a higher place from which to find justice by affected new gTLD applicants. The next phase of the new gTD program should allow for applicants to sue ICANN in courts for any damages caused as a result of lack of proper accountability processes. This is what I would like to see as part of the Congressional Review of ICANN's Accountability which I would also recommend strongly.
By Sophia Bekele, CEO of DotConnectAfrica. Ms. Bekele is a former ICANN generic Names Supporting Organization (gNSO) Council policy advisor & contributed to policy over the new gTLD programme & IDNs. She was also policy advisor to various UN Agencies on ICTs. Founder and spearhead of the Yes2DotAfrica campaign. Bekele is a business and corporate executive, an international entrepreneur, a thought leader in Corporate and ICT Governance, international policy, Business Strategy, Internet, ICT & development. Her Profiles on sophiabekele.com / wikipedia.
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