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. The decision rendered in an IRP is intended to be a final and binding resolution of all the issues raised by the claimant.

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 (ICDR).

Procedure

An IRP follows the rules established by the ICDR for international arbitrations and the interim supplementary procedures for ICANN's IRP drafted by the IRP-IOT.

• The supplementary procedures set a time limit on filing a Dispute. The Claimant must submit a written statement of a Dispute within 120 days after they become aware of the material effect of the action or inaction giving rise to the Dispute. This permits some tolling of the time limit based on when the Claimant "becomes aware" of the impact of an action or inaction. However, the Claimant must file the statement of the Dispute within 12 months from the date of the action or inaction. In addition, all fees must be paid within three days of the filing of the request to initiate the IRP.
• Fees for filing the Dispute vary based on the amount of damages claimed.
  • In most cases, the monetary impact of an ICANN Board decision are indeterminate, and in some cases there is no claim for monetary relief. As a result, the initial filing fee will be either $3,750 (nonmonetary claim) or $8,625 (indeterminate monetary claim).
  • If the case proceeds to the first hearing, a final fee of $2,875 (nonmonetary) or $10,350 (indeterminate) is due prior to the date of the first hearing.
  • The supplementary procedures do contain a "prevailing party" provision, allowing the arbitration panel to "shift and provide for the losing party to pay administrative costs and/or fees of the prevailing party." This provision only applies to administrative costs and filing fees submitted to ICDR.
  • Each party is responsible for its own legal costs, except that ICANN shall cover the full cost of an IRP brought by the Empowered Community. In the event that the Claimant does not "participate in good faith" in the Cooperative Engagement Process and ICANN is the prevailing party in the IRP, the IRP Panel "shall award to ICANN all reasonable fees and costs incurred by ICANN in the IRP, including legal fees."
• The supplementary procedures require the IRP Panel to "consider accessibility, fairness, and efficiency (both as to time

and cost) in its conduct of the IRP." They also establish a strong presumption against in-person meetings and witness testimony for hearings related to the dispute. In each case, the IRP Panel may only permit an in-person proceeding or witness testimony if it determines that it is necessary for fairness, necessary for furtherance of the Purposes of the IRP, and that those considerations outweigh the time and financial expense of in-person hearings or witness testimony and cross-examination.

• The supplementary procedures presume the existence of an IRP Standing Panel, but in the event that the standing panel does not exist at the initiation of the Dispute, the ICDR shall select members of the panel based on its rules.

Amendments and Evolution

The First Accountability and Transparency Review included recommendations related to ICANN Accountability mechanisms, including the then-current IRP:

23. As soon as possible, but no later than June 2011, the ICANN Board should implement Recommendation 2.7 of the 2009 Draft Implementation Plan for Improving Institutional Confidence which calls on ICANN to seek input from a committee of independent experts on the restructuring of the three review mechanisms - the Independent Review Panel (IRP), the Reconsideration Process and the Office of the Ombudsman. This should be a broad, comprehensive assessment of the accountability and transparency of the three existing mechanisms and of their inter-relation, if any (i.e., whether the three processes provide for a graduated review process), determining whether reducing costs, issuing timelier decisions, and covering a wider spectrum of issues would improve Board accountability. The committee of independent experts should also look at the mechanisms in Recommendation 2.8 and Recommendation 2.9 of the Draft Implementation Plan. Upon receipt of the final report of the independent experts, the Board should take actions on the recommendations as soon as practicable.

In response to the recommendation, the board convened the Accountability Structures Expert Panel (ASEP) to review and assess ICANN's accountability mechanisms. The panel submitted its report to the board in October 2012. Among the recommendations included in the report was a call for an omnibus standing panel to provide "a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN's mission and work" in the panelist pool for the IRP. The ASEP also recommended the creation of the Cooperative Engagement Process, several procedural refinements, and adjustments to the timeline and workflow of an IRP proceeding. These recommendations were incorporated into the ICANN Bylaws by amendment in April 2013.. Despite its inclusion in the Bylaws, the standing panel was not formed.

As part of the IANA Transition in 2016, the Bylaws governing the IRP were amended again to implement changes proposed by the Cross Community Working Group on Accountability. In addition to other details, the amendments established the IRP Implementation Oversight Team (IRP-IOT) to assist in implementing the changes. IRP-IOT and ICANN org initiated a process of recruiting for a Standing Panel for ICDR to draw from when establishing IRP Panels. The effort appeared to fizzle out in 2018. The IRP-IOT was "had difficulties in achieving active participation or quorum with its current membership at regularly scheduled meetings." An effort to re-compose the IRP-IOT and gain more traction on its goals and objectives was initiated by the board in November 2019. At its meeting in October 2020, the Board Accountability Mechanisms Committee received an "update" on that effort, although few details are available. The BAMC received a similar briefing in April 2021, and again in July 2021. A more substantive discussion occurred at the BAMC meeting of December 8, 2021:

The BAMC noted that the IRP-IOT has been focusing its work over the past two years on updating the IRP Supplementary Procedures, and that much of this work has centered on the [rule defining the] time for filing an IRP. The IRP-IOT has also created subgroups to address the remaining areas of the Supplementary Procedures. The BAMC discussed the importance of moving the work on updating the Supplementary Procedures along and asked ICANN org for recommendations on how to move the work along.

The BAMC also noted that the departure of Nigel Roberts had left a vacant board representative seat on the IRP-IOT. ICANN org was tasked with recommending ways to move the work on IRP Supplementary Procedures along; the BAMC Chair was also instructed to ask the chair of the Board Governance Committee to call for expressions of interest from board members to serve on the BAMC. As noted by the BAMC in December 2021, since the reconstruction of the IRP-IOT, there has to date been little effort focused on establishing a standing panel. In February 2022, ICANN announced the establishment of the IRP Community Representatives Group, which was created to assist the SOs and ACs in creating a slate of nominees for the Board to consider as the first omnibus standing panel.

Previous and Current IRPs

Manwin Licensing International v. ICANN

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.

ICM v. ICANN

2008-2011
Subject: .xxx
Prevailing Party: ICM Registry, LLC

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 assessment. At the time, the ICANN Bylaws permitted the prevailing party to recoup its administrative fees and costs. The IRP Panel shifted all fees and costs to ICANN, including all the expenses and fees of the IRP ($473,744.91). ICANN was instructed to reimburse the ICM registry's expenses ($241,372.46). The IRP Panel expressly stated that "the holdings of the Independent Review Panel are advisory in nature; they do not constitute a binding arbitral award."

In response, the board created a series of decisional planning documents to determine how to move forward with ICM's application. In June 2010, the board determined that it would "accept and act in accordance with some of the Panel's findings" while continuing to deliberate on the full findings of the IRP Panel. The accepted findings were that that ICANN Board initially determined that ICM met the sponsorship criteria, and then reconsidered that decision in a manner inconsistent with neutral, fair and objective documented policy. The Board approved the following steps as a result:

1. staff to conduct expedited due diligence to ensure that: (1) the ICM Application is still current; and (2) there have been no changes in ICM's qualifications.
2. if the expedited due diligence results are successful, ICANN staff to proceed into draft contract negotiations with ICM, taking into account the GAC advice received to date.
3. upon staff's finalizing of a draft contract with ICM, the Board will determine whether the proposed contract is consistent with GAC advice, and if not, will enter into GAC consultation in accordance with the Bylaws.
4. after the GAC consultation is completed, the Board will decide whether to approve the contract, and will declare whether its action is in accordance with GAC advice or not.

In December 2010, the board initiated consultation with the GAC with the intention of entering into a registry agreement with ICM. In March 2011, the Registry Agreement with ICM was approved, with the board acknowledging good faith efforts to reach a consensus with the GAC, and noting that the GAC advice was not followed. It is unclear whether the Board accepted and approved the proposed reimbursement to ICM.