IRP

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Independent Review Panel (IRP) is a third-party review of Board actions operated by an International arbitration provider appointed. The IRP is in-charge in evaluating and determining if the actions, in-actions, decisions or resolutions made by the ICANN Board are contrary to the provisions of the Corporation's Articles of Incorporation and/or By-Laws. An IRP is created whenever there is an allegation against the Board and the complainant requests for an independent review of the action or decision. Article 3, Section IV (Independent Review of Actions) of the ICANN Bylaws mandates the creation of an IRP, which is carried out by ICANN through its Independent Review Policy established in 2002.[1]

Background

The development of the Independent Review Policy began in March, 1999. The initial ICANN Board appointed a 10-member Advisory Committee on Independent Review in-charge in developing the principles to structure independent review procedures in compliance with the ICANN Bylaws. On May 7, 1999, the Advisory Committee submitted its interim report with draft principles and an addendum for public review and comment. The documents were publicly discussed during the ICANN meetings held in Berlin in May, 1999. After deliberations, the ICANN Board accepted the draft principles and the Advisory Committee was instructed to complete its task.[2][3]

On August 6, 1999, the Advisory Committee submitted the Final Report: Principles for Independent Review. The ICANN Board introduced the document for public discussion and accepted it during its meeting in Santiago in August, 1999.[4]

During the ICANN Meeting in Cairo held in March, 2000, the ICANN Staff submitted the proposed Independent Review Policy. The policy was a guideline on how to implement the principles recommended by the Advisory Committee.[5] The policy was adopted by the ICANN Board on March 10. An Independent Review Panel Nominating Committee was delegated to nominate 9 members who will comprise the IRP.[6]

On May 7, 2001, the IRP Nominating Committee received instructions from the Board to seek qualified applicants for membersship on the IRP within 90 days.[7] Following the directive, the IRP Nominating Committee issued a call to the Internet community to submit nominations on June 26, 2001.[8] The IRP Nominating Committee was unsuccessful in completing the list of candidates for the IRP Panel on the deadline set by the ICANN Board and requested an extension. During the ICANN Meeting in Montevideo, the Board approved the request of the IRP Nominating Committee and extended the deadline to submit the list of the candidates for the IRP until October 15, 2001.[9] The IRP Nominating Committee was not able to provide a complete list during the extended deadline. Only three members of the committee submitted a list of 9 nominees while the other members did not participate in the process. A report on the status of the committee was submitted during the ICANN Meeting in Accra, Ghana on March 14, 2002. The nine individuals nominated for the IRP Panel included: [10]

  1. Zoe Baird (US)
  2. Diane Cabell (US)
  3. Scott Donahey(US)
  4. David Post (US)
  5. Michael Kirby (AU)
  6. Houston Putnam Lowry]] (US)
  7. Margit Brandl (AT)
  8. Henry Perritt (US)
  9. Zheng Chengsi (CN)

On March 14, 2002, the challenge and difficulties faced by the IRP Nominating Committee was referred to Evolution and Reform Committee, then chaired by Alejandro Pisanty with Lyman Chapin, Phil Davidson, Hans Kraaijenbrink, and Nii Quaynor serving as members. The Reform and Evolution Committee was created by the ICANN Board to develop a framework for the implementation of reforms on ICANN's structure and procedures.[11] ICANN adopted its new Bylaws on December 15, 2002. Artcle IV Section 3 of the Bylaws mandates an independent review process without the involvement of an IRP Nominating Committee.[12]

Members of the IRP Nominating Committee

The initial members of the IRP Nominating Committee included:[13]

Independent Review of Board Actions

Under Article IV Section 3 of the ICANN Bylaws, the internet governing body is mandated to develop a separate process for third-party review of Board actions in the event of accusations that the Board decided in contrast with the organization's Bylaws. Complainants are required to submit a request for an independent review of the action or decision. An Independent Review Panel operated by an international dispute resolution provider will handle the case and determine the merit of the accusations and whether ICANN violated its Bylaws via the contested action. The selected IRP is required to submit its operating rules and procedures to the ICANN Board for approval. A three-member IRP is allowed as per request of either party. If there is no request for a three-member panel, the dispute will be resolved by a one-member panel. Members of the IRP must follow the conflict of interest policy as stated in the IRP provider's operating rules and procedures.[14]

ICM Registry LLC Request for IRP

On June 6, 2008, ICM Registry LLC, a company based in Florida which was established to apply and serve as the .xxx sponsored top level domain name (sTLD) manager filed a request for independent review of Board actions after the ICANN Board rejected its application in March, 2007. The company claimed that ICANN's decision to reject ICM's application were "arbitrary, lacking in transparency and discriminatory," a clear violation of the organization's Bylaws. The complaint was filed by ICM to the International Centre for Dispute Resolution (ICDR) whereby the company asked the IRP to invalidate ICANN's decision. In addition, ICM also requested the IRP to declare that the company fulfilled all the requirements set by the RFP, direct ICANN to immediately execute a Registry agreement between ICANN and ICM and require ICANN to pay all the expenses incurred by the company in conjunction with its .xxx application including legal fees.[15]

On September 8, 2008, ICANN responded to the ICM complaint and pointed out that its decision was "consistent with the organization's Mission Statement, Articles of Incorporation and Bylaws and its negotiations with the company had been open, transparent and in good faith." In addition, ICANN reasoned that its Bylaws required the Board to consider the opinion of the Governmental Advisory Committee (GAC). In the case of .xxx TLD, ICM knew that the string was highly controversial and the GAC raised its concerns regarding the company's proposal. Those concerns were considered by ICANN in its decision. ICANN also explained that it never asserted any commitment or assured the company regarding the approval of its application. Furthermore, the internet governing body pointed out that it did not base its entire decision on the strong recommendation of the Independent Evaluation Panel to deny its application because it did not meet the sponsorship criteria for the application process.[16]

On February 18, 2010, the IRP declared that ICM Registry met the required sponsorship criteria for the .xxx sTLD application process, and that ICANN did not carry out a fair and objective decision. Pursuant to Article IV, Section 3(12) of the Bylaws, the Internet governing body will shoulder the fees and expenses incurred by the ICDR ($4,500) including all the expenses and fees of the IRP ($473,744.91) and reimburse the ICM registry's expenses ($241,372.46).[17]

Manwin Request for IRP

Manwin Licensing International, the owner of numerous licenses and trademarks for adult oriented domain names such as YouPorn and xTube filed a request for an Independent Review Panel on November 16, 2011. The company claimed that the ICANN Board fell short of addressing important issues such as competition, consumer protection, malicious abuse and rights protection prior to its approval of the .xxx TLD. In addition, Manwin alleged that ICANN failed to compel ICM to follow its registry contract and allowed the company to engage in anti-competitive practice and violate IP rights.[18]

References