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DotConnectAfrica files for ICANN independent review

Kevin Murphy, January 22, 2014, 12:58:14 (UTC), Domain Policy

Failed .africa gTLD applicant DotConnectAfrica has filed an Independent Review Process appeal against ICANN, it emerged today.

The nature of the complaint is not entirely clear, but in a press release DCA said it’s related to “ICANN Board decisions and actions taken with regard to DCA Trust’s application for the .africa new gTLD”.

It’s only the third time an IRP has been filed. The first two were related to .xxx; ICM Registry won its pioneering case in 2009 and Manwin Licensing settled its followup case last year.

DCA said that it’s an “amended” complaint. It turns out the first notice of IRP was sent October 23. ICANN published it December 12, but I missed it at the time.

I’d guess that the original needed to be amended due to a lack of detail. The “Nature of Dispute” section of the form, filed with the International Center for Dispute Resolution, is just a sentence long, whereas ICM and Manwin attached 30 to 60-page legal complaints to theirs.

The revised notice, which has not yet been published, was filed January 10, according to DCA.

DCA applied for .africa in the current new gTLD round, but lacked the government support required by the Applicant Guidebook for strings matching the names of important geographic regions.

Its rival applicant, South African ccTLD registry Uniforum, which does have government backing, looks set to wind up delegated, whereas ICANN has designated DCA’s bid as officially “Not Approved”.

DCA has been alleging a conspiracy — often involving DI — at almost every juncture of the process, even before it filed its application. Read more here, here and here.

To win an IRP, it’s going to have to show that it suffered “injury or harm that is directly and causally connected to the Board’s alleged violation of the Bylaws or the Articles of Incorporation”.

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Comments (14)

  1. Rubens Kuhl says:

    From ICANN Bylaws, Advisory Committees:
    “The Governmental Advisory Committee may put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies.”

    GAC issued an advice specifically recommending action. Board followed it. End.

  2. calvin says:

    Inevitable considering the IRP filing fee which I understand to top out at just over US 10k.

    • Richard Funden says:

      So it is cheaper than the objection process of the new gTLD program…

      • Kevin Murphy says:

        The legal fees have come to millions of dollars in the other IRPs that have been filed to date.

        • From my understanding there were 2 other IRPs:

          1) ICM (.XXX) – http://www.icann.org/en/news/irp/icm-v-icann
          2) Manwin – http://www.icann.org/en/news/irp/manwin-v-icann

          Where does it say the filing costs for an IRP case is $10,000? If it is then it is a fraction of a single ICC Community Objection fee which could range from $40k to $200k depending if it is a one-person panel vs. a 3-person panel. Is there a link where the $10k fee is mentioned?

          The language by ICDR states:

          “The IRP PANEL shall fix costs in its DECLARATION. The party not prevailing in an IRP shall ordinarily be responsible for bearing all costs of the proceedings, but under extraordinary circumstances the IRP PANEL may allocate up to half of the costs to the prevailing party, taking into account the circumstances of the case, including the reasonableness of the parties’ positions and their contribution to the public interest. In the event the Requestor has not availed itself, in good faith, of the cooperative engagement or conciliation process, and the requestor is not successful in the Independent Review, the IRPPANEL must award ICANN all reasonable fees and costs incurred by ICANN in the IRP, including legal fees” (Source: https://www.adr.org/cs/idcplg?IdcService=GET_FILE&dDocName=ADRSTAGE2014403&RevisionSelectionMethod=LatestReleased)

          I am sure Manwin did not spend a million dollars for their IRP and lawsuit against ICM. ICM and Manwin settled their legal battle by ICM offering significantly discounted .xxx domain registrations in one of the months and incorporating such promotions in the future.

          I will be assuming ICM’s stretched out IRP was an outlier given the environment. ICANN has more on the line this time round with the entire new gTLD roll-out and their objectives of expanding given the monies received from the new gTLD Program. The case costs incurred for the IRP in the ICM case was about $475,000 (note that this number does not include the legal fees). ruled that ICANN had to pick up all the costs of the independent panel to the tune of $475K and reimburse ICM the fees it paid for the application to the tune of another $241K:

          “It follows that, in pursuance of Article IV, Section 3(12) of the Bylaws, ICANN shall be responsible for bearing all co
          sts of the IRP Provider. Each party shall bear its own attorneys’ fees. Therefore, the administrative fees and expenses of the International Centre for Dispute Resolution, totaling $4,500.00, shall be borne entirely by ICANN, and the compensation and expenses of the Independent Review Panel, totaling $473,744.91, shall be borne entirely by ICANN. ICANN shall accordingly reimburse ICM Registry with the sum of $241,372.46, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by ICM Registry.” (Source: http://www.icann.org/en/news/irp/icm-v-icann/news/irp/-panel-declaration-19feb10-en.pdf)

          If i were Uniform I would be looking to find a way to work out something with DotConnectAfrica in regards to .AFRICA that makes sense and to resolve this ongoing debacle.

          • calvin says:

            The fees involved with filing an IRP are certainly not clear – I went with the document at http://www.icdr.org/icdr/ShowPDF?doc=ADRSTG_004338 . As I read it – this is just the filing fee to get things started. And yup – looks like it may top out at US65k – not the US10k I mentioned. Anyway – I read the fee to get started as being minimal – you’re welcome to disagree and point out reasons for that.

          • calvin says:

            >If i were Uniform I would be looking to find a way to work out something with
            > DotConnectAfrica in regards to .AFRICA that makes sense and to resolve this ongoing
            > debacle.

            Why?

            ZA Central Registry (formally UniForum SA) is not a party to the complaint – it’s between her and ICANN.

          • Martin says:

            Please Calvin,

            It is wrong to say: “it is between her and ICANN” in your comment. Officially, the IRP proceeding “is between DCA and ICANN”; therefore you have no reason to ‘personalize’ it or to make a sexist remark.

          • calvin says:

            Martin – in case you’ve missed it – there’s one personality behind DCA, who happens to be female. As for personalising things – we’ll she’s still trying to push through a plan I outlined to her in São Paulo in 2006 when I bought her lunch. A plan I might add, that I got horribly wrong – thank goodness I didn’t try to implement it.

          • Martin says:

            Calvin: your comment again confirms the fact that you appear to have a personal problem with a ‘female personality’. The email exchange you had in the past (http://www.scribd.com/doc/101286747/AfriICANN-Email-Sophia-Bekele-on-History-of-Africa-Response-to-Calvin-Browne ) says the opposite of your claim, you have taken her plan instead, as she laid down her plans when she had lunch with you in South Africa. Don’t know who bought who lunch then. But usually who buys lunch is one with an agenda of wanting something, so looks like she must have had the upper hand in the said transaction.

            Therefore, if you claimed an ownership of a “business” proposal you made at some point, to now rejecting the same proposal as “terribly wrong” and glad “you didn’t try to implement it”, it is not quite smart is it?, shows you neither had a stand for what you proposed nor can you support your own claims, except what comes out as obvious and personal is your sexist attitude, which is small-minded. If your acclaimed proposal went “terribly wrong”, whose proposal did you implement next? You must be buying many lunches.

          • calvin says:

            Martin,

            You’re as delusional as she is….. oh …. wait….. it makes sense now!

            you are her!

          • Martin says:

            Why would my answer be delusional say even if I was her? You should respond the question at hand and not deviate. I also read this link http://domainingafrica.com/i-will-win-africa-because-i-have-friends-in-high-places-case-of-conflicted-board-members/ interesting; I guess anyone can be delusional for you. But whatever warms your heart-Calvin-Me-Her-You-Her-her-Me-me-You. She is here-she is there-she is everywhere!!!! …..It must be her! It is her! whalalala

  3. Your final paragraph is actually irrelevant. You stated

    “To win an IRP, it’s going to have to show that it suffered ‘injury or harm that is directly and causally connected to the Board’s alleged violation of the Bylaws or the Articles of Incorporation'”.

    The questions of having to prove

    -injury/harm

    and

    -direct causation

    really don’t come into it.

    Before having to prove either of these things, the Complainant has to prove a breach of the Bylaws or the Articles.

    And, personally, I don’t think that’s on the cards, so I’m betting the complaint won’t get out of the starting gate when it gets considered by the panel.

    It just adding more to the already pervasive aroma of 2,3-dimethylpyrazine.

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