Consideration of the Asia Green IT System Independent Review Process Final Declaration

Asia Green IT System Bilgisayar San. ve Tic. Ltd. Sti. (AGIT) initiated Independent Review Process (IRP) proceedings challenging the decision of the ICANN Board (acting through the New gTLD Program Committee (NGPC)) to accept the Governmental Advisory Committee (GAC) non-consensus advice against AGIT's applications for .HALAL and .ISLAM (Resolution 2013.06.04.NG01, available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013...), and to place AGIT's applications on hold until AGIT resolved the concerns raised by the objecting countries and the Organisation of Islamic Cooperation (OIC) (Resolution 2014.02.05.NG01, available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2014...).

After reviewing and considering the Final Declaration and all relevant materials, the Board Accountability Mechanisms Committee (BAMC) concluded that re-reviewing the GAC non-consensus advice (as defined in Section 3.1 subparagraph II of the Applicant Guidebook) as well as the positions advanced by both supporting and opposing parties would afford the Board a fuller understanding of the sensitivities regarding the .HALAL and .ISLAM gTLDs and would assist the Board in making its determination as to whether or not AGIT's applications should proceed. The BAMC therefore has recommended that the Board direct the BAMC to re-review the GAC non-consensus advice as well as the subsequent communications from or with objecting and supporting parties, in light of the Final Declaration, and provide a recommendation to the Board as to whether or not the applications for .HALAL and .ISLAM should proceed.

AGIT applied for .HALAL and .ISLAM. 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." On 20 November 2012, the United Arab Emirates (UAE) and India submitted Early Warning notices through the GAC against both applications, expressing serious concerns regarding a perceived lack of community involvement in, and support for, the AGIT applications. (Early Warnings, available at https://gacweb.icann.org/display/gacweb/GAC+Early+Warnings.) On 13 March 2013, the Telecommunications Regulatory Authority of the UAE filed community objections with the International Centre for Expertise of the International Chamber of Commerce (ICC) against AGIT's applications (Community Objections).

After a regularly-scheduled meeting, on 11 April 2013, the GAC issued its Beijing Communiqué, wherein it provided non-consensus advice to the Board pursuant to Section 3.1 subparagraph II of the Guidebook, indicating that: "The GAC recognizes that Religious terms are sensitive issues. Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed." (Beijing Communiqué, available at https://www.icann.org/en/system/files/correspondence/gac-to-board-18apr1... [PDF, 156 KB].)

On 4 June 2013, the NGPC adopted the NGPC Scorecard setting forth the NGPC's response to the portion of the GAC's Beijing Communiqué regarding .ISLAM and .HALAL, stating: "The NGPC accepts [the GAC] advice. […] Pursuant to Section 3.1ii of the [Guidebook], the NGPC stands ready to enter into dialogue with the GAC on this matter. We look forward to liaising with the GAC as to how such dialogue should be conducted." (NGPC Scorecard, available at https://www.icann.org/en/system/files/files/resolutions-new-gtld-annex-1... [PDF, 563 KB].) On 18 July 2013, Board members and the relevant GAC members attended a meeting in Durban, South Africa to understand the scope of the GAC's concerns regarding the Applications.

Subsequently, several additional entities expressed concern regarding AGIT's applications:

The State of Kuwait sent a letter to ICANN expressing its support for the UAE's Community Objections and identifying concerns that AGIT did not receive the support of the community, that the applications are not in the best interest of the Islamic community, and that the strings "should be managed and operated by the community itself through a neutral body that truly represents the Islamic community such as the Organization of Islamic Cooperation." (25 July 2013 letter, available at https://www.icann.org/en/system/files/correspondence/al-qattan-to-icann-... [PDF, 103 KB].)
The Lebanese GAC representative wrote to the NGPC Chair objecting to the AGIT applications, stating that the "operation of these TLDs must be conducted by a neutral non-governmental multi-stakeholder group representing, at least, the larger Muslim community." (4 September 2013 letter, available at https://www.icann.org/en/system/files/correspondence/hoballah-to-chalaby... [PDF, 586 KB].)
The Secretary General of the Organisation of Islamic Cooperation (OIC) wrote to the GAC Chair that, as an "intergovernmental organization with 57 Member States spread across four continents" and the "sole official representative of 1.6 billion Muslims," the OIC opposed the operation of the .ISLAM and .HALAL strings "by any entity not representing the collective voice of the Muslim people." (4 November 2013 letter, available at https://www.icann.org/en/system/files/correspondence/crocker-to-dryden-1... [PDF, 1.59 MB].)
The Ministry of Communication and Information Technology of Indonesia sent a letter to the NGPC Chair "strongly object[ing]" to the .ISLAM string but "approves" the .HALAL string if operated "properly and responsibly." (24 December 2013 letter, available at https://www.icann.org/en/system/files/correspondence/iskandar-to-chalaby... [PDF, 463 KB].)
On 24 October 2013, the ICC panel considering the UAE's Community Objections rendered two Expert Determinations denying the UAE's Community Objections against AGIT's applications. On 11 November 2013, the ICANN Board Chair sent a letter to the GAC Chair referencing the OIC's 4 November 2013 letter and stating, "[n]ow that the objection proceedings have concluded, the NGPC must decide what action to take on these [.ISLAM and .HALAL] strings. Before it does so, it will wait for any additional GAC input during the Buenos Aires meeting or resulting GAC Communiqué. The NGPC stands ready to discuss this matter further if additional dialog would be helpful."

On 21 November 2013, the GAC issued its Buenos Aires Communiqué, stating: "[The] GAC took note of letters sent by the OIC and the ICANN Chairman in relation to the strings .islam and .halal. The GAC has previously provided advice in its Beijing Communiqué, when it concluded its discussions on these strings. The GAC Chair will respond to the OIC correspondence accordingly, noting the OIC's plans to hold a meeting in early December. The GAC chair will also respond to the ICANN Chair's correspondence in similar terms." (GAC Buenos Aires Communiqué, available at https://www.icann.org/en/system/files/correspondence/gac-to-board-20nov1... [PDF, 97 KB].) On 29 November 2013, the GAC Chair responded to the ICANN Board Chair, confirming that the GAC has concluded its discussion on AGIT's applications and stating that "no further GAC input on this matter can be expected." (29 November 2013 letter, available at https://www.icann.org/en/system/files/correspondence/dryden-to-crocker-2... [PDF, 73 KB].)

On 4 December 2013, AGIT wrote to the ICANN Board Chair, proposing certain governance mechanisms for the .ISLAM and .HALAL strings, noting: "At the core of this governance mechanism is the Policy Advisory Council (PAC) contemplated for each TLD. PACs will be deployed for both .ISLAM and .HALAL. They will serve as non-profit governing boards made up of leaders from many of the world's various Muslim communities, governments, and organizations. The PACs will oversee policy development for the TLDs, to ensure they are coherent and consistent with Muslim interests. AGIT has invited the leading Muslim organisations, including the Organization for Islamic Cooperation (OIC), to become members of the PACs." (4 December 2013 letter, available at https://www.icann.org/en/system/files/correspondence/abbasnia-to-crocker... [PDF, 140 KB].)

Nevertheless, on 19 December 2013, the OIC sent a letter to the ICANN Board Chair, stating that the foreign ministers of the OIC's 57 Muslim member states had unanimously adopted a resolution officially objecting to the operation of the .ISLAM and .HALAL TLDs "by any entity not reflecting the collective voice of the Muslim People[.]" (19 December 2013 letter, available at https://www.icann.org/en/system/files/correspondence/ihsanoglu-to-crocke... [PDF, 1.06 MB].) On 30 December 2013, AGIT submitted a letter to the ICANN Board Chair challenging the nature and extent of the OIC's opposition to AGIT's applications, reiterating its commitment to the proposed multistakeholder governance model of .ISLAM and .HALAL described in its 4 December 2013 letter, and requesting to proceed to the contracting phase. (30 December 2013 letter, available at https://www.icann.org/en/system/files/correspondence/abbasnia-to-crocker... [PDF, 1.9 MB].)

On 5 February 2014, the NGPC adopted a scorecard stating: "The NGPC takes note of the significant concerns expressed during the dialogue, and additional opposition raised, including by the OIC, which represents 1.6 billion members of the Muslim community." (5 February 2014 Scorecard, available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2014....) In addition, the NGPC directed the transmission of a letter from the NGPC, via the ICANN Board Chair, to AGIT acknowledging AGIT's stated commitment to a multistakeholder governance model, but also noting the substantial opposition to AGIT's applications (7 February 2014 Letter): "Despite these commitments, a substantial body of opposition urges ICANN not to delegate the strings .HALAL and .ISLAM.… There seems to be a conflict between the commitments made in your letters and the concerns raised in letters to ICANN urging ICANN not to delegate the strings. Given these circumstances, the NGPC will not address the applications further until such time as the noted conflicts have been resolved." (7 February 2014 Letter, available at https://www.icann.org/en/system/files/correspondence/crocker-to-abbasnia... [PDF, 540 KB].) The 7 February 2014 Letter listed the Gulf Cooperation Council, the OIC, the Republic of Lebanon, and the government of Indonesia as four parties that "all voiced opposition to the AGIT applications," and provided some detail as to the concerns of each.

In December 2015, AGIT initiated an independent review of the ICANN Board's decision to accept the GAC's non-consensus advice against AGIT's applications for .HALAL and .ISLAM and to place AGIT's applications on hold until AGIT resolved the concerns raised by the objecting countries and the OIC.

On 30 November 2017, the IRP Panel (Panel) issued its Final Declaration in the AGIT IRP (https://www.icann.org/en/system/files/files/irp-agit-final-declaration-3... [PDF, 1.31 MB]). The Panel's findings are summarized below, and available in full at https://www.icann.org/resources/pages/irp-agit-v-icann-2015-12-23-en.

The Panel declared AGIT to be the prevailing party, and that ICANN shall reimburse AGIT for its IRP fees and costs in the sum of US$93,918.83. (Final Declaration at ¶¶ 151, 156.) The Panel declared that the ICANN Board (through the NGPC) acted in a manner inconsistent with ICANN's Articles of Incorporation (Articles) and Bylaws. Specifically, the Panel declared that the "closed nature and limited record of the [GAC] Beijing meeting provides little in the way of 'facts' to the Board. Of the 6 pages [Communiqué] produced by the GAC to the Board, only 58 words concerned the .HALAL and .ISLAM applications, utilizing vague and non-descript terms [such as "religious sensitivities"]." "[T]his manner and language is insufficient to comply with the open and transparent requirements mandated by Core Value 7." Therefore, "any reliance on the Beijing Communiqué by the Board in making their decision would necessarily be to do so without a reasonable amount of facts." "[T]o be consistent with Core Value 7 requires ICANN to act in an open and transparent manner." (Final Declaration at ¶¶ 81, 83, 148.) The Panel further declared that the Board "acted inconsistently with Core Value 8" by placing AGIT's applications "on hold" – "to be consistent with Core Value 8 requires [ICANN] to make, rather than defer (for practical purposes, indefinitely), a decision…as to the outcome of [AGIT's] applications." (Final Declaration at ¶ 149.) In the view of the Panel, "the 'On Hold' status is neither clear nor prescribed" in the Guidebook, Articles or Bylaws. The Panel declared that by placing the applications "on hold," ICANN "created a new policy" "without notice or authority" and "failed to follow the procedure detailed in Article III (S3 (b)), which is required when a new policy is developed." (Final Declaration at ¶¶ 113, 119, 150.)

While not describing it as a "recommendation," the Panel recommended that, in order to be consistent with Core Value 8, "the Board needs to promptly make a decision on the application[s] (one way or another) with integrity and fairness." The Panel noted, however, that "nothing as to the substance of the decision should be inferred by the parties from the Panel's opinion in this regard. The decision, whether yes or no, is for [the ICANN Board]." (Final Declaration at ¶ 149.)

The Panel further concluded that, with regard to whether the Board had a reasonable amount of facts before it: "The lack of detailed content obtained from the meetings held with concerned GAC members, along with insufficient information on the revisions needed by [AGIT] for their Governance model, coupled with the significant reliance placed on the views of the objectors leads this Panel to the view that the Board" did not have a reasonable amount of facts in front of it and, therefore, "did not exercise appropriate due diligence and care" and "did not exercise independent judgment." (Final Declaration at ¶¶ 106-107.)

Regarding whether or not sufficient guidance was provided as to how AGIT was to resolve the conflicts with the objectors, the Panel stated that: "[T]he manner in which [AGIT] and objectors were to resolve such conflicts, ascertain whether this had been successfully completed, upon which timescale and adjudged by whom was not and is not clear. Whilst it is clear that the Board required conflicts to be resolved, [AGIT] was left with little guidance or structure as to how to resolve the conflicts, and no information as to steps needed to proceed should the conflicts be resolved." (Final Declaration at ¶ 109.) The Panel further stated that "[t]he Panel accepts the contention made by ICANN that it is not ICANN's responsibility to act as intermediary, however it is the opinion of this Panel that insufficient guidance is currently available as to the means and methods by which an 'On Hold' applicant should proceed and the manner in which these efforts will be assessed. Without such guidance, and lacking detailed criteria, the applicant is left, at no doubt significant expense, to make attempts at resolution without any benchmark or guidance with which to work." (Final Declaration at ¶ 110.)

In coming to its conclusions, the Panel also rejected many of AGIT's other assertions that the Board violated ICANN's Articles and Bylaws. For instance:

Pursuant to the Guidebook, members of the NGPC engaged in a dialogue with relevant members of the GAC at a meeting in Durban to understand the scope of the GAC's concerns regarding the applications. The Panel disagreed with AGIT that all GAC members and all Board members were required to meet in Durban to discuss the GAC non-consensus advice because "there is no reference to quorum requirements in [the Guidebook] and it is practical that relevant and concerned members be in attendance," and "neither the Bylaws nor the Guidebook mandate full Board attendance." (Final Declaration at ¶¶ 89, 92.)
The Panel rejected AGIT's argument that the Board acted with a conflict of interest because ICANN staff members were communicating with the OIC when the Board was considering the applications; the Panel noted that the ICANN staff members were tasked with "outreach" and they did not have "decision making authority." (Final Declaration at ¶ 101.)
Despite AGIT's arguments to the contrary, the Panel stated that the Board was not required to follow the findings of expert panelists' decisions (in this instance, the Independent Objector and the Community Objection Expert), and that "the Board is entitled to decide in a manner inconsistent with expert advice." (Final Declaration at ¶ 127.)
The Panel found that the Board was not required to approve .ISLAM and .HALAL just because the .KOSHER application proceeded to delegation, as AGIT had argued. (Final Declaration at ¶ 133.)
Contrary to AGIT's argument, the Panel found that the example scenarios listed in the Guidebook regarding the "ways in which an application may proceed through the evaluation process" "cannot be considered binding" on ICANN and did not "provide applications with a guaranteed route of success." (Final Declaration at ¶¶ 138-139.)
Taking this decision is within ICANN's Mission as the ultimate result of ICANN's consideration of this matter is a key aspect of coordinating the allocation and assignment of names in the root zone of the domain name system (DNS). Further, 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 advisory committees, and abiding by the policies and procedures set forth in the Applicant Guidebook, which were developed through a bottom-up consensus-based multistakeholder process 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 GAC non-consensus advice (as defined in Section 3.1 subparagraph II of the Applicant Guidebook) and communications from or with objecting and supporting parties, in light of the Final Declaration, 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.