Changes

** 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.<ref name="intproc" />

** 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.<ref name="intproc" />

** 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.<ref name="intproc" />  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."<ref name="art4" />

** 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.<ref name="intproc" />  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."<ref name="art4" />

* The supplementary procedures require the IRP Panel to "consider accessibility, fairness, and efficiency (both as to time

* 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."<ref name="intproc" /> 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.<ref name="intproc" />

and cost) in its conduct of the IRP."<ref name="intproc" /> 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.<ref name="intproc" />

* 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.<ref name="intproc" />

* 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.<ref name="intproc" />

==Previous and Current IRPs==

==Previous and Current IRPs==

===DCA Trust v. ICANN===

{| class="wikitable"

|ICANN reported that it is pursuing Board Accountability Mechanisms Committee (BAMC) input with respect to consideration of any further action on GCCIX’s application.<ref>[https://www.icann.org/en/system/files/files/irp-gccix-procedural-order-4-14jul22-en.pdf GCCIX Procedural Order 4, IRP, ICANN Files]</ref>

 

===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.<ref>

| [[Namecheap]], Inc.

[http://domainincite.com/youporn-challenges-new-gtlds-with-review-demand/ YouPorn challenges new gTLDs with review demand]</ref>

 

| [[.org]], [[.info]], [[.biz]]

| ICANN’s Price Cap Decision was inconsistent with the ICANN Bylaws and Article III of the Articles of Incorporation. Each party shall bear its own legal and expert witness fees and expenses, except that the administrative costs of the ICDR, totaling $13,825.00 and the IRP Panel members’ along with the Emergency Panelist’s fees and expenses, totaling $ 841,894.76 shall be borne entirely by ICANN. Namecheap is the prevailing party; ICANN shall reimburse Namecheap the sum of $58,750.00<ref>[https://www.icann.org/en/system/files/files/irp-namecheap-icann-final-declaration-redacted-23dec22-en.pdf Final Declaration, Namecheap IRP, ICANN Files]</ref>  

'''2008-2011'''<br />

'''Subject: .xxx'''<br />

|-

'''Prevailing Party: ICM Registry, LLC'''<br />

| [[Fegistry, LLC]], [[Minds + Machines Group Limited]], [[Radix]] Domain Solutions Pte. Ltd., and Domain Ventures Partners PCC Limited

 

| open<ref>[https://www.icann.org/en/system/files/files/irp-fegistry-et-al-procedural-order-10-04oct22-en.pdf Fegistry et al IRP Procedural Order 10, ICANN Files]</ref>

On June 6, 2008, ICM Registry LLC, a company based in Florida which was established to apply and serve as the [[.xxx]] [[sTLD|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.<ref>[http://www.icann.org/en/irp/icm-v-icann/icm-irp-request-06jun08.pdf ICM Registry LLC v. ICANN]</ref>

| [[.hotel]]

 

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 [[GAC|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.<ref>

[http://www.icann.org/en/irp/icm-v-icann/icann-response-to-icm-request-08sep08.pdf ICANN Response to ICM Request for IRP]</ref>

 

| [[Afilias]] Domains No. 3 Limited

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).<ref name="ICMdec">

[http://www.icann.org/en/irp/icm-v-icann/irp-panel-declaration-19feb10-en.pdf Declaration of the Independent Review Panel]</ref> 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."<ref name="ICMdec" />

 

| Afilias is the prevailing party in relation to the liability portion of its core claims and its Request for Emergency Interim Relief; ICANN acted contrary to its Articles and Bylaws, breaching the Guidebook and Auction Rules through its arrangements with Verisign. However, the Respondent (ICANN) was designated as the prevailing party in regard to all aspects of the Claimant’s requests for relief ''other than'' (a) the request for a declaration that ICANN acted inconsistently with its Articles and Bylaws and (b) the outstanding aspects of the Rule 7 Claim.<ref>[https://www.icann.org/en/system/files/files/irp-afilias-final-declaration-redacted-25may21-en.pdf Final Declaration, Afilias IRP, ICANN Files]</ref> The Panel denied the Claimant’s request to disqualify NDC’s bid for .WEB and proceed with contracting the Registry agreement for .WEB with the Claimant, in exchange for a price to be specified by the Panel and paid by the Claimant.

In response, the board created a series of decisional planning documents to determine how to move forward with ICM's application.<ref>[https://www.icann.org/resources/pages/icm-v-icann-2012-02-25-en ICANN.org - ICM v. ICANN Archive]</ref> 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.<ref name="juneicmres">[https://www.icann.org/resources/board-material/resolutions-2010-06-25-en#5 Resolutions (2010.06.25.19-23) of the Board], June 25, 2010</ref> 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.<ref name="ICMdec" /><ref name="juneicmres" /> The Board approved the following steps as a result:

# 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.

# 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.

| [[Amazon]]

# 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.

# 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.<ref name="juneicmres" />

| .amazon

 

| The Board acted in a manner inconsistent with its Articles, Bylaws and Applicant Guidebook by giving complete deference to the consensus advice of the GAC. It failed to exercise the requisite degree of independent judgment in making its decision. The Board failed to explain its decision. The failure of the GAC to give Amazon an opportunity to submit a written statement of its position to the GAC violated the basic procedural fairness requirements for a constituent body of ICANN. In denying Amazon’s applications, ICANN Board did not violate the Bylaws’ prohibition against disparate treatment. Amazon’s objections to changes made to the Applicant Guidebook are untimely.<ref>[https://www.icann.org/en/system/files/files/irp-amazon-final-declaration-11jul17-en.pdf Final Declaration, Amazon IRP, ICANN Files]</ref>

In December 2010, the board initiated consultation with the GAC with the intention of entering into a registry agreement with ICM.<ref>[https://www.icann.org/resources/board-material/resolutions-2010-12-10-en#4 Resolutions (2010.12.10.23-26) of the Board], December 10, 2010</ref> 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.<ref>[http://www.icann.org/en/minutes/resolutions-18mar11-en.htm#5 Resolutions (2011.03.11.23-25) of the Board], March 11, 2011</ref><ref>[https://www.icann.org/en/registry-agreements/details/xxx?section=agreement ICANN.org - .xxx Registry Agreement], as amended</ref> It is unclear whether the Board accepted and approved the proposed reimbursement to ICM.

| [[Commercial Connect]], LLC

| The Claimant failed to pay its required share of the funding for the IRP to take place, so the IRP was terminated.<ref>[https://www.icann.org/en/system/files/files/irp-commercial-connect-order-terminating-case-11apr17-en.pdf Order Terminating Case, Commerical Connect IRP, ICANN Files]</ref>

| [[Commercial Connect]], LLC

| closed<ref>[https://www.icann.org/resources/pages/irp-commercial-connect-v-icann-2016-01-28-en Commercial Connect IRP, Resources, ICANN]</ref>

| [[.shop]]

| 27 January 2016 - 12 February 2016

|-

| Asia Green IT Systems Bilgisayar San. ve Tic. Ltd. Sti.

| [[.islam]], [[.halal]]

| Asian Green is the prevailing party; ICANN acted inconsistently with its core values by lacking transparency and placing applications on hold and shall reimburse Asian Green $93,000+<ref>[https://www.icann.org/en/system/files/files/irp-agit-final-declaration-30nov17-en.pdf Final Declaration, AGIT IRP, ICANN Files]</ref>

| [[Afilias]] Limited, BRS Media, Inc. & [[Tin Dale], LLC

| withdrawn<ref>[https://www.icann.org/resources/pages/afilias-brs-tin-llc-v-icann-2015-10-12-en IRP Request Withrawal, Afilias et al IRP, Resources, ICANN]</ref>

| the ICANN Board’s 12 October 2014 Decision and Action (as preceded by its February 2014 Decision and Action) is a “decision or action by the Board” that is “inconsistent with the Articles of Incorporation of Bylaws” of ICANN and “materially affected” the Claimant. However, Its ability to do so must be preserved as being in the best interests of the Internet community as a whole. ICANN shall not be responsible for bearing all costs of the proceedings. Instead, pursuant to Article 11 of the Supplementary Rules, the IRP Panel determines that no costs shall be allocated to the Claimant as the prevailing party. Consequently, each Party shall bear its own costs for this IRP Panel proceeding.<ref>[https://www.icann.org/en/system/files/files/irp-corn-lake-final-declaration-17oct16-en.pdf Final Declaration, Corn Lake IRP, ICANN Files]</ref>

| ICANN failed to consider evidence of bias in the Expert Determination, should reconsider its reconsideration decisions, and has to reimburse the claimant<ref>[https://www.icann.org/en/system/files/files/irp-dot-sport-final-declaration-31jan17-en.pdf Final Declaration, Dot Sport IRP, ICANN Files]</ref>

| 24 March 2015 - 31 January 2017

| [[Donuts|Little Birch LLC]] and [[Minds + Machines Group Limited]] & [[Despegar]] Online SRL, Donuts Inc., [[Famous Four Media, Limited]], [[Fegistry, LLC]], and [[Radix]] FZC

| [[.eco]], [[.hotel]]

| IRP Request made in relation to the .hotel gTLD by Despegar Online SRL, Donuts Inc., Famous Four Media Limited, Fegistry LLC, and Radix FZC is denied. ICANN was the prevailing party in the .hotel IRP;  IRP Request made in relation to .eco gTLD by Little Birch, LLC, and Minds + Machines Group Limited is denied; ICANN as the prevailing party in the .eco IRP. Declares that the fees and expenses of the IRP Panel members, totaling US$113,351.52, and the fees and expenses of the ICDR, totaling US$11,500.00, shall be born as to half by ICANN, and as to the other half collectively by Despegar Online SRL, Donuts Inc., Famous Four Media Limited, Fegistry LLC, Radix FZC, Little Birch, LLC and Minds +Machines Group Limited ("Applicants"). Therefore, ICANN shall reimburse the Applicants collectively the sum of $5,750.00 representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by the Applicants.<ref>[https://www.icann.org/en/system/files/files/irp-despegar-online-et-al-final-declaration-12feb16-en.pdf Final Declaration, Little Birch, Despegar, et al IRP, ICANN Files]</ref>

==References==

==References==