Independent Review Process

The Independent Review Process (IRP) is an ICANN Accountability mechanism that provides third-party review of ICANN's actions.

Overview

The IRP provides a means for claimants to bring their dispute with ICANN to a third party arbiter. It is an arbitration mechanism that seeks to establish precedent and predictability of interpretation of ICANN policy and principles, as well as create an alternative forum for resolving disputes.

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 of 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.

On August 6, 1999, the Advisory Committee submitted the Final Report: Principles for Independent Review. The ICANN Board published the document for public comment, and accepted it at ICANN 3 in August 1999.

During ICANN 5,, 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. The policy was adopted by the ICANN Board on March 10. An Independent Review Panel Nominating Committee was delegated to nominate 9 members who would comprise the Independent Review Panel. The initial members of the IRP Nominating Committee included:

• Tim Berners-Lee
• Scott Hemphill
• Olivier Iteanu
• Ching-Yi Liu
• Joon Kook Park
• Houlin Zhao

On May 7, 2001, the IRP Nominating Committee received instructions from the Board to seek qualified applicants for membership on the IRP within 90 days. Following the directive, the IRP Nominating Committee issued a call to the Internet community to submit nominations on June 26, 2001. 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. 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:

1. Zoe Baird (US)
2. Diane Cabell (US)
3. Scott Donahey(US)
4. David Post (US)
5. Michael Kirby (AU)
6. Houston Putnam (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 the 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. ICANN adopted its new Bylaws on December 15, 2002. Artcle IV Section 3 of the revised Bylaws mandated an independent review process without the involvement of an IRP Nominating Committee.

Purpose and Process

Under the current ICANN Bylaws, IRP is intended to hear and resolve disputes for nine purposes:

1. Ensure that ICANN does not exceed the scope of its Mission and otherwise complies with its Articles of Incorporation and Bylaws;
2. Empower the global Internet community and Claimants to enforce compliance with the Articles of Incorporation and Bylaws through meaningful, affordable and accessible expert review of Covered Actions;
3. Ensure that ICANN is accountable to the global Internet community and Claimants;
4. Address claims that ICANN has failed to enforce its rights under the IANA Naming Function Contract;
5. Provide a mechanism by which direct customers of the IANA naming functions may seek resolution of PTI service complaints that are not resolved through mediation;
6. Reduce Disputes by creating precedent to guide and inform the Board, Officers, Staff members, Supporting Organizations, Advisory Committees, and the global Internet community in connection with policy development and implementation;
7. Secure the accessible, transparent, efficient, consistent, coherent, and just resolution of Disputes;
8. Lead to binding, final resolutions consistent with international arbitration norms that are enforceable in any court with proper jurisdiction; and
9. Provide a mechanism for the resolution of Disputes, as an alternative to legal action in the civil courts of the United States or other jurisdictions.

Definitions

• Covered Actions are defined as "any actions or failures to act by or within ICANN committed by the Board, individual Directors, Officers, or Staff members that give rise to a Dispute."
• Disputes are defined as:
  • Claims that Covered Actions constituted an action or inaction that violated the Articles of Incorporation or Bylaws, including but not limited to any action or inaction that: (1) exceeded the scope of the Mission; (2) resulted from action taken in response to advice or input from any Advisory Committee or Supporting Organization that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; (3) resulted from decisions of process-specific expert panels that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; (4) resulted from a response to a DIDP (as defined in Section 22.7(d)) request that is claimed to be inconsistent with the Articles of Incorporation or Bylaws; or (5) arose from claims involving rights of the EC as set forth in the Articles of Incorporation or Bylaws.
  • Claims that ICANN, the Board, individual Directors, Officers or Staff members have not enforced ICANN's contractual rights with respect to the IANA Naming Function Contract; and
  • Claims regarding PTI service complaints by direct customers of the IANA naming functions that are not resolved through mediation.
  • Article 4.3(c) expressly excludes the following types of claims from the scope of the IRP: EC challenges to the result(s) of a PDP, unless the Supporting Organization(s) that approved the PDP supports the EC bringing such a challenge; claims relating to ccTLD delegations and re-delegations; claims relating to Internet numbering resources; and claims relating to protocol parameters. In other words, the IRP may not be used to appeal or challenge the core functions of ICANN's mission, or undermine bottom-up policy development.
• The Cooperative Engagement Process (CEP) is an optional, preliminary, non-binding process "to resolve and/or narrow the Dispute." Parties to a CEP may request an IRP Mediator to facilitate meetings under the CEP. The IRP Mediator is ineligible for appointment to the IRP Panel regarding the Dispute.
• The IRP Panel is a three-member panel appointed to preside over and make findings and decisions regarding a Dispute.
• The IRP Provider is the "well-respected international dispute resolution provider" that administers proceedings under the IRP. The current IRP Provider is the International Centre for Dispute Resolution.

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.

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.

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).

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.