ICM Registry, the applicant for .XXX generic Top Level Domain, hopes
to begin offering .XXX domain names in 2010 following an independent
review of its application to, and subsequent refusal by, ICANN.
The rejection of ICM Registry's application was always controversial,
however the first ICANN Independent Review Process decision since the
process was introduced six years ago voted two to one to advise the
ICANN Board to reconsider the .XXX gTLD at its next meeting.
The review panel found that ICANN's handling of ICM Registry's
application to run the .XXX top level domain violated ICANN's Bylaws and
Articles of Incorporation, as well as international and California law.
It should be noted that the holdings of the Independent Review Panel
are advisory in nature and that they do not constitute a binding
arbitral award.
ICANN's CEO Rod Beckstrom has been prompt in noting the decision and
that ICANN will address the issue at its next meeting. However others
have been critical saying ICANN needs to approve the .XXX gTLD and move
on.
"The solution is simple," said Liz Williams succinctly on the ICANN blog
commenting on Beckstrom's statement on the decision, and summing up
what others said. "Give ICM its contract to which it was entitled years
ago and move on with the very best improvements that you could make to
ICANN -- being absolutely accountable for past errors and getting the
future right. That is what your legacy will be."
Interestingly, Kieren McCarthy has noted that the current ICANN chair,
Peter Dengate Thrush originally wanted to vote in favour of approving
ICM's application and was critical of the approval process and was very
critical "of the reasons given in the Board resolution for not allowing
dot-xxx, and even goes so far as to say that they presented a
'particularly thin argument,'" McCarthy notes. At the time Dengate
Thrush said "I'm going to vote against this resolution and, in fact, I
sought to move a motion in favor of adopting this applicant."
ICANN and ICM were notified of the decision by the American Arbitration
Association's International Center for Dispute Resolution on 19 February
2010. The Independent Review Panel, which was constituted pursuant to
ICANN's Bylaws, found that the ICANN Board's vote on ICM's application
on 1 June 2005 reflected the Board's determination that the application
"met the required sponsorship criteria," and that reconsideration of
that finding by the Board was "not consistent with the application of
neutral, objective and fair documented policy," as required by ICANN's
Bylaws.
The Panel found "grounds for questioning the neutral and objective
performance of the Board" during the registry agreement negotiations
with ICM, and further suggested that the Board, motivated in part, by
"[t]he volte face in the position of the United States Government" had
breached "its obligation not to single out ICM Registry for disparate
treatment." Additionally, the Panel declared unequivocally that, in
light of its founding history and global responsibilities, ICANN must
operate in conformity with relevant principles of international law. The
Panel determined that within an IRP, the actions of ICANN's Board must
be reviewed objectively and should not be afforded special deference. As
a result of all of these holdings in ICM's favour, the Panel declared
ICM the prevailing party in the dispute and assigned responsibility to
ICANN, recommending they pay approximately $478,000 to cover the costs
of the process.
ICMs's Chairman, Stuart Lawley, described the decision as "a victory for
ICM Registry and for the ICANN model of private sector management of
the Domain Name System." According to Lawley "ICANN established the
review process as part of its system of accountability to all 5970537
Internet stakeholders. As an aggrieved party, we invoked ICANN's
procedures, expended a lot of resources, and fought hard for our rights.
The Panel took its job very seriously. The Panellists studied
everything that the parties submitted and listened to the witnesses very
carefully during the course of a week long hearing in Washington, D.C.
And they have now issued a detailed ruling in ICM's favour. We believe
that ICANN's new leadership has the vision to embrace the decision as an
opportunity to strengthen the ICANN model and comply with the rule of
law. We commit to working with them in partnership and cooperation to
that end. We are eager to execute a registry agreement, complete the
build out of our business, and implement the vision that started all of
this over 6 years ago. Too much time has been lost and resources wasted
-- from both sides -- already."
ICM Registry has also started to take reservations for .XXX domain names
on their website.
So now it's over to ICANN to consider the issue at their Nairobi meeting
in March.
For more reading see:
icann.org/en/irp/icm-v-icann/irp-panel-declaration-19feb10-en.pdf
[decision]
blog.icann.org/2010/02/landmark-step-in-icanns-use-of-accountability-mechanisms/
icmregistry.com/
kierenmccarthy.com/2010/02/23/what-icanns-chair-said-about-xxx-at-the-time/
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