ICANN Resolutions » Consideration of the Amazon EU S.à.r.l. v. ICANN Independent Review Process Final Declaration
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Whereas, the Final Declaration in the Amazon EU S.à.r.l. (Amazon) v. ICANN Independent Review Process (IRP) was issued on 11 July 2017.
Whereas, among other things, the IRP Panel declared that "Amazon is the prevailing party," and ICANN "shall reimburse Amazon the sum of US$163,045.51." (Final Declaration at ¶ 126.)
Whereas, the Panel recommended that the Board "promptly re-evaluate Amazon's applications" and "make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon's applications." (Final Declaration at ¶ 125.)
Whereas, in accordance with Article IV, section 3.21 of the applicable version on the Bylaws, the Board has considered the Final Declaration.
Resolved (2017.09.23.15), the Board accepts that the Panel declared the following: (i) Amazon is the prevailing party in the Amazon EU S.à.r.l. v. ICANN IRP; and (ii) ICANN "shall reimburse Amazon the sum of US$163,045.51."
Resolved (2017.09.23.16), the Board directs the President and CEO, or his designee(s), to take all steps necessary to reimburse Amazon in the amount of US$163,045.51 in furtherance of the Panel's Final Declaration.
Resolved (2017.09.23.17), further consideration is needed regarding the Panel's non-binding recommendation that the Board "promptly re-evaluate Amazon's applications" and "make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon's applications."
Resolved (2017.09.23.18), the Board asks the Board Accountability Mechanisms Committee (BAMC) to review and consider the Panel's recommendation that the Board "promptly re-evaluate Amazon's applications" and "make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon's applications," and to provide options for the Board to consider in addressing the Panel's recommendation.
Amazon EU S.à.r.l. (Amazon) initiated Independent Review Process (IRP) proceedings challenging the New gTLD Program Committee's (NGPC's) decision on 14 May 2014 to accept the Governmental Advisory Committee (GAC) consensus advice that three Amazon applications – for .AMAZON and its Chinese and Japanese character equivalents – should not proceed. (Resolution 2014.05.14.NG03, available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2014....)
Amazon applied for .AMAZON and its Chinese and Japanese character equivalents (Amazon Applications), which passed Initial Evaluation (see https://newgtlds.icann.org/sites/default/files/ier/bqe3so7p3lu2ia8ouwp7e... [PDF, 46 KB]). Various South American countries including Brazil and Peru, through the GAC, raised concerns about the Amazon Applications. The Guidebook allows for the GAC to provide a GAC Early Warning, which is a notice to an applicant that "the application is seen as potentially sensitive or problematic by one or more governments." The governments of Brazil and Peru, with the endorsement of Bolivia, Ecuador and Guyana, submitted an Early Warning notice through the GAC, in which the concerned governments stated that: "[g]ranting exclusive rights to this specific gTLD to a private company would prevent the use of this domain for the purposes of public interest related to the protection, promotion and awareness raising on issues related to the Amazon biome. It would also hinder the possibility of use of this domain to congregate web pages related to the population inhabiting that geographical region." (Early Warning, available at https://gacweb.icann.org/display/gacweb/GAC+Early+Warnings?preview=/2713... [PDF, 79 KB].)
After indicating in the Beijing Communiqué (April 2013) that the Amazon Applications required further GAC consideration, the GAC provided consensus advice (GAC Advice) to the ICANN Board in the Durban Communiqué (18 July 2013) that the Amazon Applications should not proceed (https://gacweb.icann.org/display/GACADV/2013-07-18-Obj-Amazon). Pursuant to the New gTLD Program, applicants have the opportunity to respond to GAC advice. Amazon provided responses to both the Beijing and Durban Communiqués, indicating in the latter that the GAC Advice "is inconsistent with international law; would have discriminatory impacts that conflict directly with ICANN's Governing Documents; and contravenes policy recommendations implemented within the AGB achieved by international consensus over many years." (Amazon Response to GAC Durban Communiqué, available at https://newgtlds.icann.org/sites/default/files/applicants/03sep13/gac-ad... [PDF, 6.11 MB].) Following careful consideration of Amazon's response, ICANN commissioned an independent, third-party expert, with respect to Amazon's international law argument, "to provide an opinion on the well foundedness of various objections raised against the reservation of the new gTLD '.amazon'" (https://www.icann.org/en/system/files/correspondence/crocker-to-dryden-0... [PDF, 736 KB]). The conclusion of the expert supported the view that ICANN, within its processes, could either accept or reject the Amazon Applications and neither would be inconsistent with international law.
On 14 May 2014, the NGPC accepted the GAC Advice and directed ICANN not to proceed with the Amazon Applications. (Resolution 2014.05.14.NG03, available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2014....) As part of its deliberations, the NGPC considered various factors including but not limited to the GAC Early Warning, Amazon's response(s) to the GAC Advice, correspondence received from various parties on the matter, and the expert analysis commissioned by ICANN. The NGPC's decision was without prejudice to the continuing efforts by Amazon and members of the GAC to pursue dialogue on the relevant issues.
On 1 March 2016, Amazon submitted a request for independent review of ICANN Board Resolution 2014.05.14.NG03 directing that the Amazon Applications should not proceed.
On 11 July 2017, the IRP Panel (Panel) issued its Final Declaration in the Amazon v. ICANN IRP (https://www.icann.org/en/system/files/files/irp-gcc-final-declaration-24... [PDF, 2.52 MB]). The Panel's findings and recommendation are summarized below, and available in full at https://www.icann.org/resources/pages/gcc-v-icann-2014-12-06-en.
In a 2-1 decision, the Panel declared Amazon to be the prevailing party, and declared that the "Board, acting through the NGPC, acted in a manner inconsistent with its Articles, Bylaws and Applicant Guidebook because, […] by giving complete deference to the consensus advice of the [GAC] regarding whether there was a well-founded public policy reason for its advice, the NGPC failed in its duty to independently evaluate and determine whether valid and merits-based public policy interests existed supporting the GAC's consensus advice." (Final Declaration at ¶ 2.) The Panel further declared that "ICANN shall bear the costs of this IRP as well as the cost of the IRP provider," and "shall reimburse Amazon the sum of $163,045.51." (Final Declaration at ¶ 126.)
In addition, the Panel recommended that the Board "promptly re-evaluate Amazon's applications" and "make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon's applications." If the Board determines that the Amazon Applications should not proceed, the Panel indicated that "the Board should explain its reasons supporting that decision"; the "GAC consensus advice, standing alone, cannot supplant the Board's independent and objective decision with a reasoned analysis." (Final Declaration at ¶ 125.) In the alternative, if the Board determines that the Amazon Applications should proceed, the Panel recommended that ICANN conduct its "'meet and confer' with the GAC" "within sixty (60) days of the issuance of this Final Declaration." (Final Declaration at ¶ 125.)
In coming to its conclusions, the Panel stated that "under the facts of this IRP, the procedural fairness obligation applicable to the GAC, at a minimum, required that the GAC allow a written statement or comment from a potentially adversely affected party, before it decided whether to issue consensus advice objecting to an application[; and the] Board's obligation was to see that the GAC, as a constituent body of ICANN, had such a procedure and that it followed it." (Final Declaration at ¶ 94.)
The Panel further concluded that "GAC consensus advice, although no reasons or rationale need be given, nonetheless must be based on a well-founded public interest concern and this public interest basis must be ascertained or ascertainable from the entirety of the record before the NGPC." (Final Declaration at ¶ 103.) According to the Panel, "the NGPC deferred to the consensus GAC advice regarding the existence of a valid public policy concern and by so doing, it abandoned its obligation under ICANN governance documents to make an independent, merits-based and objective decision whether or not to allow the applications to proceed." The Panel further noted that, "[b]y failing to independently evaluate and articulate the existence of a well-founded public policy reason for the GAC advice, the NGPC, in effect, created a conclusive or irrebuttable presumption for the GAC consensus advice." (Final Declaration at ¶ 116.)
The dissenting IRP panelist disagreed with the majority's reliance on the GAC's failure to give Amazon the chance to present to the GAC (as he thought that reviewing the GAC's processes was outside the scope of an IRP). He also disagreed with the majority's determination that the NGPC accepted the GAC Advice as irrebuttable, rather than just a strong presumption, as he thought the NGPC did properly analyze the GAC Advice. Notwithstanding, the dissenting panelist agreed with the final result because he thought Amazon had rebutted the strong presumption created by the GAC Advice, but the NGPC failed to provide a "well-founded" basis for its conclusion that the Amazon Applications should still not proceed.
The Board appreciates that both parties participated in good faith in the IRP, and accepts and acknowledges that a neutral third-party panel concluded that Amazon is the prevailing party, and that ICANN should reimburse Amazon for its IRP costs. The Board is therefore adopting this resolution so as to not delay the reimbursement of Amazon for its IRP costs, while the Board continues to consider the Panel's recommendation and/or additional options regarding next steps.
The Board recognizes the importance of this decision and wants to make clear that it takes the results of all ICANN accountability mechanisms very seriously, which is further evidenced by the creation of the new Board Accountability Mechanisms Committee (BAMC) and why the Panel's recommendation is being referred to the BAMC.
The Board's decision is in the public interest, taking into consideration and balancing the goals of resolving outstanding gTLD disputes, respecting ICANN's accountability mechanisms, and abiding by the policies and procedures set forth in the Applicant Guidebook, which were developed over numerous years of community efforts and input.
Taking this decision is expected to have a direct financial impact on the ICANN Organization in the amount the Panel declared ICANN should reimburse the prevailing party. Further review and analysis of the Panel's recommendation will not have any direct impact on the security, stability or resiliency of the domain name system.
This is an Organizational Administrative function that does not require public comment.