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Should new gTLD objections have an appeals process?

Kevin Murphy, December 13, 2013, 11:24:40 (UTC), Domain Policy

That’s the question the ICANN Ombudsman is asking today.
Several new gTLD applicants that have lost objections — many in decisions that appear to diverge from ICANN’s rules or are inconsistent with other decisions — have been in touch to ask for redress, Ombudsman Chris LaHatte blogged this morning. He wrote:

The real problem as it seems to me, is that apart from the internal review procedures, there is no ability to seek an appeal from the panel decisions. A number of complainants had mentioned the need for an appeal process, emphasising that some of the decisions were in their view, inconsistent or not following the majority views.

LaHatte noted that his role is to decide issues of fairness in ICANN’s own decisions. As objections are all handled by third-party arbitration bodies, it’s not at all clear whether he has any authority at all over objection decisions.
Applicants have also been invoking the Reconsideration process en masse in an attempt to have successful objections overturned, but all Reconsideration requests to date have been rejected.
Reconsideration generally requires that the requester provide ICANN with new evidence that was not considered at the time of the original decision.
The ICANN Board Governance Committee, which handles Reconsideration, appears to be happy to leave objections in the hands of the arbitrators so far.
But the new gTLD objection process is a bit of a joke at the moment.
String Confusion Objection panelists have delivered inconsistent decisions, while Community Objection and Limited Public Interest Objection panels often seem to be making up rules as they go.
So should ICANN have an appeals process? If one is created it will undoubtedly be broadly used.

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Comments (1)

  1. Nigel Roberts says:
    December 14, 2013 at 12:35 pm

    It might be useful to examine the work of the ccNSO’s Framework of Interpretation Working Group for a guide in this.
    FoI WG is principally concerned with interpretation of RFC1591 which from 1994 is the policy applicable to the creation and management of ALL TLDs, not just ccTLDs. (There is an argument that /all/ new TLD delegations must follow RFC1591, not just ccTLDs).
    A lot of our work focussed on the circumstances in a change of manager can take place of a TLD, rather than new delegation ab initio.
    However, RFC1591 does envisage an appeals process to an panle called the IDNB which, to date, was never convened, to the knowledge of anyone living.
    The WG Final Report is yet to be consolidated — but most of its content, apart from the yet to be written Glossary, is already published.
    See http://ccnso.icann.org/workinggroups/foiwg.htm
    In the latest tranche, on Revocation, it is stated that RFC1591 implies an Appeals Process (the IDNB) should be available, in order to comply with the duty to act fairly (what used to be called Natural Justice) and we interpret that to mean an INDEPENDENT appeal route.
    I’m somewhat surprised that with all the policy and legal talent available in the new gTLD world, this fundamental point appears may have been missed …

    Reply

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