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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.
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It is time to stop trying to invent legal recourse that already exists. California law provides for it, and ICANN has been successfully sued in the past.
Repeated harangues on this point only raise questions of sore losers and self interest.
Module 6 of the new gTLD Applicant Guidebook Top-Level Domain Application –Terms and Conditions Stipulates under item No. 6 that: "APPLICANT AGREES NOT TO CHALLENGE, IN COURT OR IN ANY OTHER JUDICIAL FORA, ANY FINAL DECISION MADE BY ICANN WITH RESPECT TO THE APPLICATION, AND IRREVOCABLY WAIVES ANY RIGHT TO SUE OR PROCEED IN COURT OR ANY OTHER JUDICIAL FOR A ON THE BASIS OF ANY OTHER LEGAL CLAIM AGAINST ICANN AND ICANN AFFILIATED PARTIES WITH RESPECT TO THE APPLICATION. APPLICANT ACKNOWLEDGES AND ACCEPTS THAT APPLICANT’S NON ENTITLEMENT TO PURSUE ANY RIGHTS, REMEDIES, OR LEGAL CLAIMS AGAINST ICANN OR THE ICANN AFFILIATED PARTIES IN COURT OR ANY OTHER JUDICIAL FORA WITH RESPECT TO THE APPLICATION SHALL MEAN THAT APPLICANT WILL FOREGO ANY RECOVERY OF ANY APPLICATION FEES, MONIES INVESTED IN BUSINESS INFRASTRUCTURE OR OTHER STARTUP COSTS AND ANY AND ALL PROFITS THAT APPLICANT MAY EXPECT TO REALIZE FROM THE OPERATION OF A REGISTRY FOR THE TLD; PROVIDED, THAT APPLICANT MAY UTILIZE ANY ACCOUNTABILITY MECHANISM SET FORTH IN ICANN’S BYLAWS FOR PURPOSES OF CHALLENGING ANY FINAL DECISION MADE BY ICANN WITH RESPECT TO THE APPLICATION. APPLICANT ACKNOWLEDGES THAT ANY ICANN AFFILIATED PARTY IS AN EXPRESS THIRD PARTY BENEFICIARY OF THIS SECTION 6 AND MAY ENFORCE EACH PROVISION OF THIS SECTION 6 AGAINST APPLICANT." Perhaps, you should spend enough time to familiarize yourself with the relevant details of the new gTLD Process Guidebook before dabbling into something that you probably do not know much about. Regarding your allusion to 'sore losers' or 'self-interest' - this is quite unnecessary. Our ICANN community processes are entirely driven by policy; and these should be predictable enough to enable them work for everybody; including any accountability mechanisms. Therefore, let us stick to the facts and analyze developments that affect our community, and not engage in name-calling and disparagement.
The language you cite is clearly vulnerable to attack in court as a contract of adhesion, whatever merit ICANN legal staff’s rationale for using it in the first place had.
One of the reasons for creating ICANN was to move the contentious arguments over domain names outside the government. Once, at a public meeting, I was accused by a disgruntled domainer as having denied him the opportunity to be a millionaire. ICANN’s “policy” debates are rife with self-interest by design.
All of which has little to do with the notion of adding yet another layer of bureaucracy to an already impenetrable forest of efforts to ensure “accountability.”
Thank you Mike Roberts for your comments.
First, you have to agree that it is because of legal provisions that were framed by ICANN’s legal staff and included in the new gTLD program guidebook, which could be attacked in court as a ‘contract of adhesion’, that amply justify the call for more robust accountability mechanisms within ICANN.
Therefore, this supports the thinking of the writer of the article, one can imagine, who has strenuously argued that existing mechanisms have proved very unsatisfactory, hence, applicants should be allowed to also sue ICANN in law courts should they wish to seek justice instead of trying their hands with accountability mechanism and processes that regularly fail to deliver.
Of course, it is possible that your executive actions at ICANN could have caused a domainer to lose a lot of money (perhaps, in millions), if the domainer thought that your action was unjust and unaccountable. It is often said that actions have consequences, and those who cannot find accountability suffer many losses including financial ones.
If according to you, ICANN’s “policy” debates are rife with self-interest by design, then it behooves all of us as community members to ensure that everything ICANN does is accountable and transparent and not based on satisfying the desires of vested ‘self-interests’.
Thank you for engaging.