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ICANN Resolutions » Consideration of the Board Governance Committee's Revised Recommendation on Reconsideration Requests 13-16 and 14-10

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Consideration of the Board Governance Committee's Revised Recommendation on Reconsideration Requests 13-16 and 14-10


Resolution of the ICANN Board
Meeting Date: 
Sat, 24 Jun 2017
Resolution Number: 
2017.06.24.20
Resolution Text: 

Whereas, dot Sport Limited (Requestor) filed Reconsideration Requests 13-16 and 14-10 challenging the Expert Determination upholding the community objection filed against the Requestor's application for the .SPORT string (Expert Determination) on the basis that the Expert that presided over the objection proceeding failed to disclose certain evidence of alleged bias.

Whereas, the Board Governance Committee (BGC) previously denied Request 13-16 and recommended that the Board deny Request 14-10, and the Board (through the New gTLD Program Committee (NGPC)) agreed, because the Requests did not support reconsideration for the reasons set forth in the BGC's Determination on Request 13-16 [PDF, 184 KB] and the NGPC Action on Request 14-10.

Whereas, the Requestor initiated an Independent Review Process (IRP) proceeding against ICANN challenging the Expert Determination, and the BGC's and Board's denial of Requests 13-16 and 14-10.

Whereas, the IRP Panel declared the Requestor to be the prevailing party and recommended that the "Board reconsider its decisions on the Reconsideration Requests, in the aggregate, weighing the new evidence in its entirety against the standard applicable to neutrals as set out in the IBA Conflict Guidelines." (Final Declaration [PDF, 518 KB], at ¶ 9.1(b).)

Whereas on 16 March 2017, the Board adopted the IRP Panel's recommendation and directed the BGC to re-evaluate the relevant Reconsideration Requests.

Whereas, the BGC has carefully considered whether the alleged evidence of apparent bias should have been disclosed by the Expert in light of the IBA Conflict Guidelines, as well as the report issued by the Ombudsman after the Board's determination on Request 14-10.

Whereas, the BGC recommended that Requests 13-16 and 14-10 again be denied, in addition to the grounds set out in the initial BGC Determination on Request 13-16 [PDF, 184 KB] and the NGPC Action on Request 14-10, because the alleged evidence of bias does not "give rise to doubts as to the arbitrator's impartiality or independence," under the IBA Conflict Guidelines and therefore, the Requestor has not stated proper grounds for reconsideration, and the Board agrees.

Whereas, the Board has carefully considered the supplemental letter submitted by the Requestor on 14 June 2017, and concludes that the letter provides no additional argument or evidence to support reconsideration.

Resolved (2017.06.24.20), the Board adopts the BGC's Further Recommendation on Reconsideration Requests 13-16 and 14-10 [PDF, 365 KB].

Rationale for Resolution: 

Brief Summary

Dot Sport Limited (Requestor) and SportAccord both applied for the .SPORT string and are in the same contention set. SportAccord filed a Community Objection (Objection) against the Requestor's application (Application). The Expert rendered a determination in favor of SportAccord (Expert Determination). (See https://newgtlds.icann.org/sites/default/files/drsp/04nov13/determinatio... [PDF, 173 KB].) The Requestor then filed two Reconsideration Requests—Request 13-16 and Request 14-10 [PDF, 867 KB], challenging the International Centre for Expertise of the International Chamber of Commerce's (ICC) appointment of the Expert, claiming that the Expert allegedly violated established policy or process by failing to disclose material information relevant to his appointment. Requests 13-16 and 14-10 were denied by the BGC and NGPC, respectively, on the basis that the grounds did not support reconsideration. (See BGC Determination on Reconsideration Request 13-16, https://www.icann.org/en/system/files/files/determination-sport-08jan14-... [PDF, 184 KB]; and NGPC Action on Reconsideration Request 14-10, https://www.icann.org/resources/board-material/resolutions-new-gtld-2014....) Following the NGPC's determination on Request 14-10, the Requestor lodged a new complaint with the Ombudsman. On 25 August 2014, the Ombudsman issued a final report on the Requestor's new complaint (Ombudsman Final Report).1

The Requestor then initiated an IRP. On 31 January 2017 [PDF, 518 KB], the IRP Panel declared the Requestor to be the prevailing party, and recommended that the Board reconsider Requests 13-16 and 14-10 "in the aggregate, weighing the new evidence in its entirety against the standard applicable to neutrals as set out in the [International Bar Association Guidelines on Conflicts of Interest in International Arbitration]" (IBA Conflict Guidelines or the Guidelines). (IRP Final Declaration at ¶ 9.1(a)-(b), https://www.icann.org/en/system/files/files/irp-dot-sport-final-declarat... [PDF, 518 KB].) On 16 March 2017, the ICANN Board accepted the IRP Panel's recommendation and directed the BGC to re-evaluate the relevant Reconsideration Requests.

The BGC has carefully considered whether the alleged evidence of apparent bias should have been disclosed by the Expert in light of the IBA Conflict Guidelines. The BGC has also evaluated the Ombudsman Final Report, which was issued after the NGPC's determination on Request 14-10. The BGC concluded, and the Board agrees, that the Requestor's claims are unsupported because the alleged evidence of bias does not "give rise to doubts as to the arbitrator's impartiality or independence," under the IBA Conflict Guidelines. (See 2004 IBA Conflict Guidelines General Standard 3(a).) The BGC noted that its previous findings regarding timeliness are not relevant to its re-evaluation of Requests 13-16 and 14-10. Therefore, the BGC has recommended that Requests 13-16 and 14-10 be again denied and the Board agrees.

On 14 June 2017, the Requestor submitted a letter to the ICANN Board refuting the BGC's Further Recommendation on Requests 13-16 and 14-10, which the Board has considered and finds does not set forth a basis for reconsideration (the 24 June 2017 Letter). (https://www.icann.org/en/system/files/files/reconsideration-13-16-et-al-... [PDF, 903 KB].)

The Board notes that Requests 13-16 and 14-10 sought reconsideration on other grounds in addition to the alleged conflicts. Those additional claims are not part of the BGC's re-evaluation. The Board (through the BGC and the NGPC) previously evaluated those additional claims in the BGC's Determination on Request 13-16 [PDF, 184 KB] and the NGPC Action on Request 14-10. The Board finds that its previous findings those additional claims which are not part of the BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB] are still applicable.

Facts

The full factual background, which the Board has considered, is set forth in the BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB] and is incorporated here.

Following the issuance of the BGC's Further Recommendation on Requests 13-16 and 14-10, the Requestor submitted the 14 June 2017 Letter [PDF, 903 KB], which the Board has reviewed and considered.

The Relevant Standards for Evaluating Reconsideration Requests and Community Objections.

The Bylaws in effect at the time that Requests 13-16 and 14-10 were filed call for the BGC to evaluate and either make a determination, or make recommendations to the Board with respect to Reconsideration Requests. (See Article IV, Section 2 of the Bylaws, effective 11 Apr. 2013, https://www.icann.org/resources/pages/bylaws-2014-04-04-en#IV and Article IV, Section 2 of the Bylaws, effective 7 Feb. 2014, https://www.icann.org/resources/pages/bylaws-2014-10-06-en#IV.) ICANN has previously determined that the reconsideration process can properly be invoked for challenges to new gTLD-related expert determinations rendered by panels formed by third party dispute resolution service providers, such as the ICC, where it can be stated that the provider failed to follow the established policies or processes it is required to follow in reaching the expert determination, or that staff failed to follow its policies or processes in accepting that determination. (See Recommendation of the BGC on Reconsideration Request 13-5, available at https://www.icann.org/en/system/files/files/recommendation-booking-01aug... [PDF, 117 KB].) The reconsideration process does not call for the BGC to perform a substantive review of expert determinations. Accordingly, the BGC's review was not to evaluate the ICC Panel's conclusion that there is substantial opposition from a significant portion of the community to which the Requestor's application for .SPORT may be targeted. Rather, the BGC's review was limited to whether the Expert violated the IBA Conflict Guidelines, which the Requestor suggests was accomplished when the Expert failed to disclose the DirecTV Contract, the TyC Relationship, and his participation as co-chair of a panel at the Conference, as these terms are defined below. The Board notes that Requests 13-16 and 14-10 sought reconsideration on other grounds in addition to the alleged conflicts. Those additional grounds are not part of the BGC's re-evaluation. The Board (through the BGC and the NGPC) previously evaluated those additional grounds in the BGC's Determination on Request 13-16 [PDF, 184 KB] and the NGPC Action on Request 14-10. The Board finds that its previous determinations on those additional grounds, which are not part of the BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB], are still applicable.

The Board has reviewed and thoroughly considered the BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB] and finds the analysis sound.

Analysis and Rationale

The BGC has concluded, and the Board agrees, that the IBA Conflict Guidelines did not mandate the Expert to disclose that: (i) DirecTV, a client of the Expert's firm, acquired broadcasting rights for the Olympics from the IOC on 7 February 2014 (the DirecTV Contract); (ii) a partner in the Expert's law firm is the president of Torneos y Competencias S.A. (TyC), a company that has a history of securing Olympic broadcasting rights (the TyC Relationship); or (iii) the Expert had co-chaired a panel at a conference in February 2011 (Conference) entitled "The quest for optimizing the dispute resolution process in major sport-hosting events." Accordingly, because the Expert was not required under the IBA Conflict Guidelines to disclose any of the alleged conduct giving rise to the claims of apparent bias asserted by the Requestor, reconsideration is not warranted.

4.1. The IBA Conflict Guidelines Do Not Require Disclosure of the DirecTV Contract or the TyC Relationship.

Contrary to the Requestor's claims, the IBA Conflict Guidelines do not require the Expert to disclose the DirectTV Contract or the TyC Relationship. Disclosure requirements for neutrals are generally assessed in accordance with the guidance set forth in the IBA Conflict Guidelines. The 2004 IBA Conflict Guidelines that were in effect during the Objection proceedings generally require an ICC expert to disclose "facts or circumstances . . . that may, in the eyes of the parties, give rise to doubts as to the arbitrator's impartiality or independence." (2004 IBA Conflict Guidelines General Standard 3(a).)

In an effort to achieve "greater consistency and fewer unnecessary challenges and arbitrator withdrawals and removals," the Guidelines set forth "lists of specific situations that … do or do not warrant disclosure or disqualification of an arbitrator" (Guidelines Application List). (See id. at ¶ 3.) The lists are designated Red, Orange and Green.

Circumstances identified on the Red List must be disclosed to the parties and will disqualify an expert unless the parties affirmatively waive the conflict. (See id. at § II.2.) An expert has a duty to disclose issues appearing on the Orange List, but those issues will not disqualify an expert unless the parties affirmatively object to the conflict. (See id. at § II.3.) Further, even if a party objects to an Orange List disclosure, an expert may still be appointed if the authority that rules on the challenge decides that it does not meet the objective test for qualification. (See id. at § II.4.) Conduct appearing on the Green List need not be disclosed at all. (See id. at § II.6.)

The 2004 IBA Conflict Guidelines note that "a later challenge based on the fact that an arbitrator did not disclose" facts or circumstances in the orange category "should not result automatically in either non-appointment, later disqualification or a successful challenge to any award. . .. [N]on-disclosure cannot make an arbitrator partial or lacking independence; only the facts or circumstances that he or she did not disclose can do so." (Id. at § II.5.)

The IRP Panel and Ombudsman in his Final Report identified several Guidelines that they viewed as being potentially implicated by the DirecTV Contract and the TyC Relationship. The BGC and the Board have carefully considered the Guidelines in their entirety, including those sections of the Guidelines identified by the IRP Panel and the Ombudsman. As discussed below, the BGC concluded, and the Board agrees, that the Guidelines did not require the Expert to disclose the DirecTV Contract or the TyC Relationship.

4.1.1. Guidelines 4.2.1 and 3.4.1 (Law Firm Adversary)

The Ombudsman suggested that Guideline 4.2.1 was arguably invoked by the Expert's law firm's representation of DirecTV in negotiations with the IOC. (See BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB] at Attachment 1.) Guideline 4.2.1 categorizes as Green (i.e., with no disclosure requirement) the circumstance where "[t]he arbitrator's law firm has acted against one of the parties or an affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator." (2004 IBA Conflict Guideline Application List at ¶ 4.2.1.)

After careful consideration, the BGC concluded, and the Board agrees, that Guideline 4.2.1 does not fit the circumstances here because the IOC is not an affiliate of SportAccord, as discussed further below. However, even if Guideline 4.2.1 applied, that Guideline does not require disclosure. Accordingly, Guideline 4.2.1 cannot support Reconsideration. Notably, the Ombudsman recognized in his final report that Guideline 4.2.1 "is not quite on point," but found it to be the "closest" set of facts to the Expert's law firm's representation of DirecTV in negotiations with the IOC. The Ombudsman added that although "[t]he guidelines talk about affiliates of parties," the "connections" in this case were "not so clear." The BGC agreed, as does the Board, inasmuch as SportAccord lacks any business, corporate, or other relationship with the IOC, but rather merely participates in the same industry, as discussed further below. Either way, as the Ombudsman noted, even if Guideline 4.2.1 was on point, an arbitrator's law firm's past adversity to a party or affiliate is on the Green List and therefore need not have been disclosed.

The BGC and the Board have additionally considered Guideline 3.4.1. Guideline 3.4.1, categorized as Orange (i.e., disclosure required), discusses when "[t]he arbitrator's law firm is currently acting adverse to one of the parties or an affiliate of one of the parties," and characterizes it as Orange List. Guideline 3.4.1 does not apply here because the Expert's law firm was adverse to the IOC in its representation of DirecTV. The IOC was neither a party to the Objection nor an affiliate of a party. The IBA Conflict Guidelines make clear that the term affiliate is used to describe different entities "within the same group of companies," including entities with a parent-subsidiary relationship or sister companies controlled by the same parent entity. (2004 IBA Conflict Guidelines Explanation 6(b); Id. Application List note 5.) With respect to affiliates, the Guidelines are specifically focused on entities that have a "controlling influence" on a party. (Id. Explanation 6(c).)

As the Requestor acknowledges, SportAccord is an umbrella organization for allinternational sports federations (Olympic and non-Olympic), as well as organizers of multi-sport games and sport-related international associations. SportAccord has ninety-two full members; the IOC is not among them. (See http://www.olympic.org/ioc-members-list.) Nor is SportAccord a member of the IOC. (Id.) In an industry as interconnected as the international sporting industry, the mere fact that: (1) the IOC's website notes that SportAccord is one of several associations organizing IOC-recognized sports federations; and (2) that two of the six members of SportAccord's Executive Council are among the 102 members of the IOC does not demonstrate an affiliation. These facts do not create an affiliation between the two entities that is comparable to an affiliation between two members of the same group of companies. (See 2004 IBA Conflict Guidelines Explanation 6(b).) Ultimately, there is nothing that shows, from the Requestor or otherwise, that the IOC has a "controlling influence" on SportAccord as a result of an affiliation or otherwise. Therefore, Guideline 3.4.1 did not mandate disclosure of the DirecTV Contract.

4.1.2. Guideline 2.3.6 (Law Firm Significant Commercial Relationship)

Guideline 2.3.6 categorizes as Red (i.e., disclosure required) the circumstance when the arbitrator's "law firm currently has a significant commercial relationship with one of the parties or an affiliate with one of the parties." The IRP Panel declared that Guideline 2.3.6 was invoked and recommended that ICANN consider whether it required the Expert to disclose his law firm's "relationship" with TyC. (IRP Final Declaration at ¶ 7.91(b).) That "relationship" consists of the fact that a partner in the Expert's law firm is the president of TyC, and the Expert's law firm has represented TyC in negotiations for Olympic broadcasting rights from the IOC.

Guideline 2.3.6 reflects the IBA's view that anyone with a "significant economic interest in the matter at stake" should not serve as an arbitrator in that matter. This is because one with a financial interest in the outcome of an arbitration cannot be – or will be perceived as not being – impartial and independent in the matter. (2004 IBA Conflict Guidelines Explanation 2(d).) As a result, Guideline 2.3.6 prohibits the appointment of an arbitrator whose law firm currently maintains a "significant commercial relationship" with one of the parties or an affiliate of a party.

The IBA's reasons for drafting Guideline 2.3.6 have no application here. The Expert's law firm's "relationship" with TyC is limited to the fact that another partner at the law firm is the president of TyC, and the firm—not the Expert—has represented TyC. The Requestor has not demonstrated that the law firm itself had a substantial (or any) financial stake in TyC or that TyC's business has any effect on the law firm's finances. The Requestor presented no evidence that would support the Requestor's claim that the Expert—or his law firm—would have received any benefit, commercial or otherwise, from deciding for or against SportAccord.

Finally, even if the Expert's law firm did have a significant commercial relationship with TyC, TyC is not a party or affiliate of SportAccord. TyC was, if anything, across the table from and adverse to the IOC – TyC negotiated with the IOC for Olympic broadcasting rights. The Requestor has not asserted that TyC had any actual connection to the party at issue here, SportAccord, except through the IOC, which as discussed above is not an affiliate of SportAccord. For this additional reason, Paragraph 2.3.6 of the IBA Conflict Guidelines did not require the Expert to disclose the TyC Relationship.

4.1.3. Guidelines 3.1.4, 3.2.1, and 3.2.3 (Party Client)

Because the IOC is neither a party nor an affiliate of a party to the Objection, the BGC concluded, and the Board agrees, the remaining Guidelines—Guidelines 3.1.4, 3.2.1, and 3.2.3—that the IRP Panel identified as arguably applicable to the Requestor's claims cannot be interpreted to require the Expert to disclose the TyC Relationship or the DirecTV Contract.

Guideline 3.1.4, categorized as Orange, applies when "[t]he arbitrator's law firm has within the past three years acted for one of the parties or an affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator." Guideline 3.2.1, categorized as Orange, applies when "[t]he arbitrator's law firm is currently rendering services to one of the parties or to an affiliate of one of the parties without creating a significant commercial relationship and without the involvement of the arbitrator." Guideline 3.2.3, categorized as Orange, applies when "[t]he arbitrator or his or her firm represents a party or an affiliate to the arbitration on a regular basis but is not involved in the current dispute."

The Requestor has not identified a party or affiliate of a party who is a client of the Expert's law firm, and as discussed, the IOC is not a party or affiliate of a party. Therefore, none of the above-listed Guidelines are analogous to the purported conflicts that the Requestor identified here.

Finally, the IBA Conflict Guidelines recognize that the "growing size of law firms" can unduly limit the ability of a party to "use the arbitrator of its choice." (2004 IBA Conflict Guidelines Explanation 6(a).) Therefore, "the activities of an arbitrator's law firm" cannot "automatically constitute a source of . . . conflict or a reason for disclosure." (Id. at General Standard 6(a).) Reading the IBA Conflict Guidelines to require disclosure of law firm relationships that are as tenuously connected to the subject of a dispute as the TyC Relationship and the DirecTV Contract were to the Objection would impose an unnecessary and excessive limit on the ability of parties to "use the arbitrator[s of their] choice." The BGC concluded that it could not recommend that result, and the Board agrees.
4.2 The IBA Conflict Guidelines Do Not Require Disclosure of the Expert's Presentation at the Dispute Resolution Conference.

The Requestor also claims that the Expert should have disclosed his participation in a February 2011 program entitled "[t]he quest for optimizing the dispute resolution process in major sport-hosting events," at a conference aimed at, among others, "sports federation leaders." The BGC concluded, and the Board agrees, that none of the rules in the IBA Conflict Guidelines require such disclosure.

The IRP Panel suggested that Guideline 3.5.2 of the IBA Conflict Guidelines is relevant to assessing whether the Expert was required to disclose his participation on a panel. Guideline 3.5.2 applies when "[t]he arbitrator has publicly advocated a specific position regarding the case that is being arbitrated, whether in a published paper or speech or otherwise." Guideline 3.5.2 is part of the Orange List.

Guideline 3.5.2 would apply only if the Expert "publicly advocated a specific position regarding the case that is being arbitrated" (emphasis added), which the Expert here did not do. Rather, the Expert participated in the Conference at issue in February 2011, more than two years before SportAccord filed its Objection and almost two and a half years before the ICC nominated the Expert to consider the Objection. Therefore, it is logically impossible that the Expert's 2011 presentation advocated a specific position regarding the Objection; as the Objection had not been filed and would not be filed for two years after the Conference. Further, the Requestor has not asserted that the Expert advocated a specific position regarding the Objection at the Conference; instead, the Requestor argued simply that the Conference was "aimed at . . . sports federation leaders." Identifying a target audience for a Conference does not rise to the level of "advocat[ing] a specific position regarding the case that is being arbitrated," as is required to implicate Guideline 3.5.2.

The IBA issued updated Conflict Guidelines in 2014, which, although issued after the Expert's appointment, provide additional guidance regarding conflict disclosures. The 2014 IBA Conflict Guidelines further clarified that an "arbitrator must, in principle, be considered to bear the identity of his or her law firm, but the activities of the arbitrator's firm should not automatically create a conflict of interest. The relevance of the activities of the arbitrator's firm . . . and the relationship of the arbitrator with the law firm, should be considered in each case."

The 2014 Guidelines include a new Guideline 4.3.4, which identifies as Green the circumstance that "[t]he arbitrator was a speaker, moderator or organizer in one or more conferences, or participated in seminars or working parties of a professional, social or charitable organization, with another arbitrator or counsel to the parties." (2014 IBA Conflict Guideline Application List at ¶ 4.3.4.)

The 2014 IBA Conflict Guidelines make clear that an arbitrator need not disclose that he or she "was a speaker, moderator or organizer in one or more conferences, or participated in seminars or working parties of a professional, social or charitable organization, with another arbitrator or counsel to the parties." (Id.) Here, the Expert participated in a panel relating to sports law; his connection to the subject matter raises no inference of bias or partiality, nor does it signify a relationship with one of the parties, an affiliate of the parties, or counsel to a party. If participation in a panel with counsel to the parties need not be disclosed, there is no reason to believe that participation in a panel covering the same genre as the arbitration covered should require disclosure.

In addition to carefully considering the Guidelines identified by the IRP Panel and the Ombudsman (all of which are discussed above), the BGC also reviewed the IBA Conflict Guidelines in their entirety. Based on that review, the BGC concluded, and the Board agrees, that no other guideline is even arguably applicable to the alleged conflicts raised by the Requestor, and thus no other guideline suggests, let alone mandates, that the alleged conflicts should have been disclosed.

Under the standard of review set forth in the Bylaws in effect when the Requestor submitted Requests 13-16 and 14-10, the BGC's review would conclude after evaluating whether the ICC failed to follow its processes concerning the appointment of the Expert. However, pursuant to the IRP Panel's recommendation, and the Board's resolution, the BGC has considered the Expert's compliance with the IBA Conflict Guidelines and, additionally, considered "whether the alleged conflicts give rise to a material concern as to lack of independence or impartiality so as to undermine the integrity or fairness of the Expert Determination." For the reasons discussed in detail above, the DirecTV Contract and the TyC Relationship cannot possibly create a material concern of lack of independence or impartiality, or undermine the integrity or fairness of the Expert. Likewise, the mere fact that the Expert participated on a panel relating to the general topic of sports law raises no inference of bias or partiality, nor does it signify a relationship with one of the parties, an affiliate of the parties, or counsel to a party.

The BGC concluded, for the reasons discussed above, and the Board agrees, that the IBA Conflict Guidelines did not mandate the disclosure by the Expert of the DirecTV Contract, the TyC Relationship, or the Expert's presentation at the Conference, nor did the alleged conflicts give rise to a material concern as to the independence or impartiality of the Expert or the integrity or fairness of the Expert Determination. The Board notes that Requests 13-16 and 14-10 sought reconsideration on other grounds in addition to the alleged conflicts. Those additional grounds are not part of the BGC's re-evaluation. The Board (through the BGC and the NGPC) previously evaluated those additional grounds in the BGC's Determination on Request 13-16 [PDF, 184 KB] and the NGPC Action on Request 14-10. The Board finds that its previous findings those additional grounds, which are not part of the BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB], are still applicable.

4.3. The Requestor's 14 June 2017 Letter Does Not Provide a Basis for Reconsideration.

The 14 June 2017 Letter sets forth the following argument: (1) the BGC did not "take due account" of the IRP Declaration; (2) the BGC mischaracterized the Expert's purported conflict of interest; (3) the BGC incorrectly applied the IBA Guidelines; (4) the BGC should not have relied on the Ombudsman Final Report; and (5) the BGC did not consider, and ICANN has not disclosed, confidential discussions between ICANN and the IOC. (See 14 June 2017 Letter [PDF, 903 KB].) The Board finds that the 14 June 2017 Letter does not raise any arguments or facts supporting reconsideration.

4.3.1. The BGC Complied With the Board Resolution

The Board directed ICANN to "take all steps necessary" to implement the IRP Panel's recommendation that the "Board reconsider its decisions on the Reconsideration Requests in the aggregate, weighing the new evidence in its entirety against the standard applicable to neutrals as set out in the IBA Conflict Guidelines", which is exactly what the BGC did. (Resolution 2017.03.16.10.) Neither the IRP Panel nor the Board directed ICANN to conclude that the Expert should have disclosed the alleged conflicts raised by the Requestor, or that the IBA Conflict Guidelines mandated a particular outcome.

The Requestor seeks to substitute its understanding of the IRP Panel's Declaration on the potential outcome of ICANN's analysis with ICANN's direction to the BGC and Board to analyze the IBA Conflict Guidelines for themselves. The Requestor is incorrect that "the IRP Panel was abundantly clear . . . that apparent bias existed." (14 June 2017 Letter [PDF, 903 KB], Pg. 2.) The IRP Panel stated, as the Requestor noted, that "[i]n the event that an Expert . . . were lacking in independence or impartiality, or there were otherwise an appearance of bias, then it is the ICANN Board that must redress that bias." (Id. at 2; IRP Final Declaration, at ¶ 7.72.) Further, the IRP Panel concluded that ICANN did not consider the IBA Conflicts Guidelines in its initial determination of Requests 13-16 and 14-10. (IRP Final Declaration at ¶ 7.88.) The IRP Panel did not conclude that ICANN applied the IBA Conflicts Guidelines incorrectly.

4.3.2. The BGC Addressed the Alleged Conflicts of Interest.

The Requestor argues that TyC and DirecTV are aligned with, rather than adverse to, the IOC, and therefore the BGC was incorrect to apply the IBA Conflict Guidelines examples as if TyC and DirecTV were adverse to the IOC. (See 14 June 2014 Letter [PDF, 903 KB], Pg. 2.) Accordingly, as discussed in the BGC's Further Recommendation on Requests 13-16 and 14-10, whether the relationship between the IOC and TyC or DirecTV was aligned or adverse, no connection between any of those three entities and SportAccord gave rise to an appearance of bias. (See BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB], Pgs. 16-17.)

The Board additionally notes that the Requestor cites an indictment of a TyC principal from May 20152, in support of its argument that the Expert was biased when he issued the Expert Determination in October 2013. The IBA Conflict Guidelines are clear that the operative facts and circumstances are those that were present "at the time [the expert] accepts an appointment to act as an arbitrator and . . . during the entire course of the arbitration proceedings." (IBA Conflicts Guidelines, Explanation to General Standard 1.) They do not extend "during the period that the award may be challenged" or thereafter. (See id.) It is not clear how the indictment is relevant, but even if it were, it occurred well after the Objection proceedings ended, and is therefore irrelevant to the IBA Conflict Guidelines analysis. Moreover, as addressed in the BGC's Further Determination on Requests 13-16 and 14-10, "the activities of an arbitrator's law firm" cannot "automatically constitute a source of . . . conflict or a reason for disclosure." (BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB], Pgs. 19-20; 2004 IBA Conflict Guidelines General Standard 6(a).) Reading the IBA Conflict Guidelines to require disclosure of law firm relationships that are as tenuously connected to the subject of a dispute as the TyC Relationship and the DirecTV Contract were to the Objection would impose an unnecessary and excessive limit on the ability of parties to "use the arbitrator[s of their] choice." (Id.)

4.3.3 The BGC Applied the IBA Conflict Guidelines Correctly.

The Requestor incorrectly claims that the BGC "failed to examine the General Standards of the IBA Conflict Guidelines." (14 June 2017 Letter, Pg. 3.) The BGC began its analysis of the IBA Conflict Guidelines with a discussion of the General Standards, including the requirement that an expert disclose "facts or circumstances . . . that may, in the eyes of the parties, give rise to doubts as to the arbitrator's impartiality or independence." (BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB], Pgs. 13-14; IBA Conflicts Guidelines, Explanation to General Standard 1.) The BGC also considered the Guidelines Application List, which is intended to provide "greater consistency" in the application of the General Standards. (See id.) The BGC also considered General Standard 6 and its accompanying Explanation, which address the analysis of law firm relationships. (BGC's Further Recommendation on Requests 13-16 and 14-10 [PDF, 365 KB], Pg. 19.)

Contrary to the Requestor's assertion, the BGC's analysis was not "extremely narrow." Rather, the BGC applied the principals from the General Standards and the Guidelines Applications List to conclude that the IBA Conflict Guidelines did not require the Expert to disclose the DirecTV Contract, TyC Relationship, or the Expert's participation as co-chair of a panel at the Conference.

4.3.4. The BGC's References to the Ombudsman Final Report were Appropriate.

The Requestor challenges the BGC's reference to the Ombudsman Final Report, arguing that the Ombudsman's findings are "at odds with the IRP Panel's finding that the BGC should have considered the IBA Conflict Guidelines."3 The Requestor asserts that the BGC "attach[ed] great weight" to the Ombudsman Final Report, but that it "had no relevance."

The Ombudsman Final Report is not inconsistent with the IRP Panel's finding. As the Requestor noted, the IRP Panel declared that the BGC should have considered the IBA Conflict Guidelines. In considering the Requestor's second complaint, the Ombudsman considered the IBA Conflict Guidelines and concluded that they did not mandate disclosure of the purported conflicts.

Additionally, although the BGC considered the Ombudsman Final Report, the BGC's determination was based on its application of the IBA Conflict Guidelines to the facts alleged by the Requestor. It did not rely on the Ombudsman's analysis in reaching its conclusion, but merely noted that the results of the analysis were consistent with the Ombudsman's analysis. Accordingly, the Requestor's arguments regarding the weight that should be accorded the Ombudsman Final Report are not relevant.

4.3.5. ICANN's Discussions with the IOC are Not Relevant.

The Requestor claims for the first time in the 14 June 2017 Letter that ICANN held confidential meetings with the IOC regarding .SPORT. (See 14 June 2017Letter [PDF, 903 KB], Pg. 4.) The Board is unaware of any confidential meetings between ICANN and the IOC concerning .SPORT, and the Requestor cites no evidence in support of this accusation. It appears to have been included solely to suggest that ICANN, rather than the Expert, harbored some bias relating to .SPORT. This unfounded assertion does not support reconsideration.

Adopting the BGC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.

This decision is an Organizational Administrative Function that does not require public comment.