DCA Trust Vs ICANN

Industry:	DNS, ICT, Domain, ICDR (AAA)
Founded:	2013
Country:	USA

On 9th July 2015, DCA Trust prevailed on the IRP as a result of declaration issues by an eminent panel of jurists. The ICANN Board on 16 July 2015 convened a special emergency meeting to quickly address the independent review panel's declaration that held in favor of DotConnectAfrica Trust regarding its .AFRICA top-level domain application. The board therefore resolved to reinstate DCA’s application back to evaluation.

DCA Trust filed for an Independent Review Process ("IRP ) as a step to resolve its dispute with ICANN over ICANN Board’s decisions and actions taken with regard to DCA Trust's application for the .africa new gTLD. The Notice of IRP came after DCA’s dotAfrica application was not allowed to complete processing to the end of Independent Evaluation (IE) by ICANN as a result of GAC Objection, which DCA stated was “unfair, discriminatory, and lacked appropriate due diligence and care” as well as “anti-competitive”

During ICANN new gTLDs initial evaluation of applications, DotConnectAfrica’s application passed all the evaluation criteria including Financial, Technical and Operational Capability Evaluation Panels. Its application was stopped due to the governmental objections effected at the ICANN Beijing meeting. DCA also requested for a Reconsideration which ICANN denied prompting that organization to begin the Independent Review Process. In January 2014, DotConnectAfrica Trust filed for an independent review of its application.

The ICANN Independent Review Process ("IRP")

The Independent Review Process ("IRP") is one of the accountability review processes set out in the ICANN Bylaws.

In addition to the Office of the Ombudsman and its reconsideration process, ICANN has also established a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with ICANN's Articles of Incorporation or Bylaws. For additional information about the independent review process, please refer to ICANN Bylaws Article IV, Section 3. The Bylaws provide that requests for independent review will be referred to an Independent Review Panel ("IRP"). ICANN has designated the International Centre for Dispute Resolution to operate the independent review process.

Applicants initiate a request for Independent Review, by completing the ICDR form . The International Centre for Dispute Resolution (“ICDR”), the international arm of the American Arbitration Association (AAA) provides institutional support for the ICANN IRP process, and the procedure of the IRP will be governed by the ICDR Rules and a set of Supplementary Procedures agreed upon between the ICDR and ICANN to govern IRPs.

IRP Panel Awarded Injunction to DotConnectAfrica Trust (DCA)

DCA Trust won Round one in its case against ICANN for the ".africa" domain. The win resulted from the fact that DCA received an Injunction it requested in its IRP Proceedings in an arbitration process, and the Injunction ruled that "ICANN must immediately refrain from any further processing of any application for .africa until this Panel has heard the merits of DCA’s Trust Notice of Independent Review Process and issued its final decision regarding the same". ICANN had in March 24 2014 proceeded to sign a contract with ZACR who are competitors for the ".africa" string, sparking an outrage that ICANN was continually mistreating DCA Trust.

Panel accepts DCA’s position on procedural framework on .Africa IRP:

The IRP panel on 14 August 2014, issued a Thirty Three (33) Pages ruling to accept DotConnectAfrica’s position on the procedural framework of the IRP proceedings. The Panel has ruled terming its Declaration and the future Declaration on the Merits of the case are binding on ICANN. (ICANN wanted this to be “advisory” and not “binding”. DCA is represented by an international law firm Weil, Gotshal & Manges LLP based in New York while ICANN is represented by a Los Angeles-based Law Firm Jones Day LLC, which has been working with ICANN nearly since its inception.

The IRP Panel on March 24 2015 declined several other key requests by ICANN to roll back its August 2014 declarations under the newly constituted panel. In the case of hearing witnesses, the IRP Panel made a declaration to require all the witnesses to testify in final hearing

DCA Trust Prevails in IRP Panel’s Final Declaration:

On July 9 2015 The IRP panel made its final ruling which declared DotConnectAfrica as the prevailing party of the DCA Trust Vs ICANN IRP.

The panel made the following concluding declarations:

148 Based on the foregoing, after having carefully reviewed the Parties’ written submissions, listened to the testimony of the three witness, listened to the oral submissions of the Parties in various telephone conference calls and at the in-person hearing of this IRP in Washington, D.C. on 22 and 23 May 2015, and finally after much deliberation, pursuant to Article IV, Section 3, paragraph 11 (c) of ICANN’s Bylaws, the Panel declares that both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.

149 Furthermore, pursuant to Article IV, Section 3, paragraph 11 (d) of ICANN’s Bylaws, the Panel recommends that ICANN continue to refrain from delegating the .AFRICA gTLD and permit DCA Trust’s application to proceed through the remainder of the new gTLD application process.

150 The Panel declares DCA Trust to be the prevailing party in this IRP and further declares that ICANN is to bear, pursuant to Article IV, Section 3, paragraph 18 of the Bylaws, Article 11 of Supplementary Procedures and Article 31 of the ICDR Rules, the totality of the costs of this IRP and the totality of the costs of the IRP Provider.

In regard to the Beijing Communique, a document that explains the GAC's objection to DCA's application, ICANN will ask the GAC "if it wishes to refine that advice and/or provide the board with further information regarding that advice and/or otherwise address the concerns raised in the Declaration."

DCA Vs ICANN Court Case

In January 20 2016, DotConnectAfrica Trust took ICANN to Court following a disagreement on how ICANN processed the IRP ruling that was declared DCA Trust the prevailing party in July 9 2015. The also submitted its first Amended Notice on 26 February 2016.

DotConnectAfrica's Granted Ex Parte Application for Temporary Restraining Order

In on March 04, 2016, A United States District Court, Central District Of California - Western Division in a ruling granted an Interim Relief for DotConnectAfrica in a decision [PDF Case No: CV 16-00862 RGK (JCx)] that ICANN should hold off from delegating the .AFRICA top-level domain (TLD) for ZA Central Registry (ZACR.

The Court ruling stated: (IN CHAMBERS) Plaintiff's Ex Parte Application for TRO (DE [20]) by Judge R. Gary Klausner: The Court grants Plaintiff's Ex Parte Application for TRO. Defendant is enjoined from issuing the .Africa gTLD until the Court decides Plaintiff's Motion for Preliminary Injunction, scheduled for hearing on April 4, 2016.

Upon review of the parties' arguments, the Court finds serious questions going to the merits. Plaintiff has demonstrated that once the gTLD is issued, it will be unable to obtain those rights elsewhere. Moreover, the injury it will suffer cannot be compensated through monetary damages. In opposition, Defendant states in conclusory fashion only that the African governments and the ICANN community will suffer prejudice if the delegation of the gTLD is delayed.

The Temporary Restraining Order will allow the Court time to consider arguments from DotConnectAfrica Trust (DCA Trust) and ICANN regarding the .AFRICA TLD. DCA Trust is represented by Brown, Neri, Smith & Khan LLP in the case

DotConnectAfrica's Granted Application for Preliminary Injunction on April 12, 2016

On April 12, 2016, following Ex Parte Application for Temporary Restraining Order, the court also granted a Preliminary Injunction for DotConnectAfrica, the decision for case no. 16-CV-00862 RGK (JCx) [PDF] The ruling detailed among other things that The balance of equities tips in favor of granting the preliminary injunction. Without preliminary injunction, DCA will lose the opportunity to obtain rights to .Africa because ICANN will likely delegate the rights to ZACR prior to the conclusion of this action, and these rights can be delegated only once. The ruling also shed light on the AUC relationship with ICANN stating that public interest favors granting preliminary injunction, that The AUC's relationship with ZACR, and its interest in preventing the delay of issuing rights to .Africa creates a conflict of interest. Therefore, on this point, the Court accords little weight to the Yedaly Declaration. On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

Media Coverages of the IRP

• US govt: Any thoughts on ICANN running the internet? Any at all? Speak your brains NOW (August 10, 2015)
• .Africa IRP: The Transcript that cost ICANN – GAC’s “Creative ambiguity, We leave things unclear so we don’t have conflict” (August 6, 2015)
• ICANN Accountability: “Creative Ambiguity” at Work in the “.AFRICA” Decision (August 6, 2015)
• “Case far from Closed” says BBC: Unsuccessful ICANN interview on .africa Cover up (August 5, 2015)
• What Brands Need to Know About ICANN’s Treatment of the .AFRICA Applications (July 30, 2015)
• BBC discusses ICANN’s dotAfrica Dispute (July 29, 2015)
• Did ZACR and Africa Union ignore the warning to be wary of wrong doing over .Africa?(July 24, 2015)
• BBC discusses ICANN’s dotAfrica Dispute (July 29, 2015)
• ICANN further implicated in .Africa controversy, More light shined on redact-happy DNS overlord (July 21, 2015)
• Booking.com uses .africa precedent to challenge .hotels ruling (July 21, 2015)
• Unredacted: ICANN's hidden role in fierce battle over .Africa rights (July 15 2015)
• DCA Trust wins .africa IRP, ICANN to pay over Kshs 60 million in costs (July 14 2015)
• East Africa: DCA Trust Wins .Africa IRP, ICANN to Pay Over Kshs 60 Million in Costs (July 14 2015)
• Review Panel Chides ICANN Board, Government Reps (July 13 2015)
• ICANN loses .Africa case: IRP panel rules in favor of DCA (July 14 2015)
• Ethiopian Born Entrepreneur Sophia Bekele Wins .Africa Domain Name Accountability Suit Against ICANN (July 13 2015)
• DCA Trust IRP Decision: ICANN Failed the Global Internet Community (July 12 2015)
• ICANN Loses Independent Review Panel Decision For Unfairly Treating TLD Applicant & Improper Deference to Governments (July 11 2015)
• Breaking: DotConnectAfrica Trust victorious on its challenge of ICANN Board over .africa (July 13 2015)
• ZACR’s dotAfrica application lacked valid endorsements (December 06 2014)
• Africa: Panel Accepts DCA's Position On Procedural Framework On Dotafrica IRP (September 10 2014)
• Panel accepts DCA’s position on procedural framework on DotAfrica IRP (September 10 2014)
• DotConnectAfrica Update: IRP Panel Rules to Accept DCA's Position On Procedural Framework (August 29 2014)
• IRP Panel’s Declaration of the IRP Procedure Panel interprets Declarations as binding on the .Africa IRP, Lectures ICANN on core accountability implications (August 20 2014
• Independent Review Panel "schools" ICANN in DotConnectAfrica Trust Case (August 18 2014)
• IRP Panel’s Declaration of the IRP Procedure in the case of DotConnect Africa Trust vs ICANN (August 16 2014)
• DotConnectAfrica schools ICANN in its response to the London GAC Advice – States Don’t accept this advice (August 11 2014)
• Tribunal freezes ICANN processing on .africa: Independent Review Panel Rules in favor of DotConnectAfrica (May 14 2014)
• Breaking: DotConnectAfrica wins .africa injunction against ICANN in first new gTLD IRP case (May 14 2014)
• dotAfrica launch further delayed by DotConnectAfrica injunction (May 13 2014)
• DCA Trust wins first round against ICANN in injunction on DotAfrica domain (May 13 2014)
• DCA Trust Wins First Round Against Icann in Injunction On Dotafrica Domain (May 13 2014)
• DCA Receives an Injunction It Requested in Its IRP Proceedings (May 13 2014)
• DCA Trust takes “.africa” case with ICANN to Independent Review Process (IRP) Panel (January 22 2014)
• DCA Trust Takes '.africa' Case With Icann to Independent Review Process Panel (January 22 2014)