In a preliminary decision dated August 14, a three-person panel of the International Centre for Dispute Resolution issued a number of procedural directions.
These include: an initial exchange of documents between DCA and ICANN, which must be agreed by August 29; a period for additional filings and briefing; and a video hearing and possible in-person hearing including cross-examination. The latter could involve senior ICANN staff.
The panel also concluded that “this Declaration and its future Declaration on the Merits of this case are binding on the Parties”. This marks a change from its previous position in the ICM case concerning .xxx.
ICANN had argued that its decision on June 4 last year that DCA’s application should not proceed, which was made following advice from the Governmental Advisory Committee (GAC), was proper and within the Board’s discretion. It also defended its subsequent decision to reject DCA’s request for reconsideration.
Before the panel, the domain name regulator challenged the position that independent reviews are binding on it, and also fought DCA’s demand for evidence exchange and cross-examination.
DCA was one of two applicants for .africa in the new gTLD programme. The other applicant, ZACR, claimed broad government support and has been contracted by ICANN. However, its launch is on hold pending the outcome of the DCA v ICANN case.
The robustness of the independent panel in this case may have implications for other disputes between gTLD applicants and ICANN. Notably, Amazon is seeking a reconsideration of ICANN’s denial of its disclosure requests regarding the .amazon domain.
DCA was represented by Arif H Ali, Marguerite Walter and Erica Franzetti of Weil, Gotshal, Manges in Washington DC. ICANN was represented by Jeffrey A LeVee of Jones Day in Los Angeles.
The panel consisted of Babak Barin (chair), Catherine Kessedjian and Richard C Neal.
