Further Consideration of the Gulf Cooperation Council Independent Review Process Final Declarations

The Gulf Cooperation Council (GCC) initiated Independent Review Process (IRP) proceedings challenging the New gTLD Program Committee's (NGPC's) decision on 10 September 2013 that "ICANN will continue to process [the .PERSIANGULF] application in accordance with the established procedures in the [Guidebook.]" (See Resolution 2013.09.10.NG03 (Annex 1), available at https://www.icann.org/resources/board-material/resolutions-new-gtld-2013....) The GCC objected to the application for .PERSIANGULF submitted by Asia Green IT System Ltd. (Asia Green) due to what the GCC described as a long-standing naming dispute in which the "Arab nations that border the Gulf prefer the name 'Arabian Gulf'" instead of the name "Persian Gulf." (See IRP Request, ¶ 3, available at https://www.icann.org/en/system/files/files/gcc-irp-request-05dec14-en.pdf [PDF, 2.44 MB].)

IRP Panel Final Declaration:
On 19 October 2016, the three-member IRP Panel (Panel) issued its Final Declaration as to the merits (Final Declaration) (https://www.icann.org/en/system/files/files/irp-gcc-final-declaration-24... [PDF, 2.52 MB]). On 15 December 2016, the Panel issued its Final Declaration As To Costs (Costs Declaration) (https://www.icann.org/en/system/files/files/irp-gcc-final-declaration-co... [PDF, 91 KB]). 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.

The Panel declared the GCC to be the prevailing party, and declared that the "action of the ICANN Board with respect to the application of Asia Green relating to the '.persiangulf' gTLD was inconsistent with the Articles of Incorporation and Bylaws of ICANN." (Final Declaration at pgs. 44-45, X.1, X.3.) Specifically, the Panel stated that: (i) "we have no evidence or indication of what, if anything, the Board did assess in taking its decision. Our role is to review the decision-making process of the Board, which here was virtually non-existent. By definition, core ICANN values of transparency and fairness were ignored." (emphasis omitted); (ii) "we conclude that the ICANN Board failed to 'exercise due diligence and care in having a reasonable amount of facts in front of them' before deciding, on 10 September 2013, to allow the '.persiangulf' application to proceed"; and (iii) "[u]nder the circumstances, and by definition, the Board members could not have 'exercise[d] independent judgment in taking the decision, believed to be in the best interests of the company', as they did not have the benefit of proper due diligence and all the necessary facts."

The Panel further declared that "ICANN is to bear the totality of the GCC's costs in relation to the IRP process," and "shall reimburse the GCC the sum of $107,924.16 upon demonstration by GCC that these incurred costs have been paid." (Costs Declaration at pg. 6, V.2.)

The Panel premised its declaration on its conclusion that the Board's reliance upon the explicit language of Module 3.1 of the Guidebook was "unduly formalistic and simplistic" (Final Declaration at ¶ 126), and that the Board should have conducted a further inquiry into and beyond the Durban Communiqué as it related to the application even though the Governmental Advisory Committee (GAC) "advice" provided in the Durban Communiqué indicated that the GAC had "finalized its consideration" of the application and "does not object" to the application proceeding. In effect, the GAC's communication to the ICANN Board provided no advice regarding the processing of .PERSIANGULF. The Panel, however, disagreed, stating that: "As we see it, the GAC sent a missive [in the Durban Communiqué] to the ICANN Board that fell outside all three permissible forms for its advice. The GAC's statement in the Durban Communiqué that the GAC 'does not object' to the application reads like consensus GAC advice that the application should proceed, or at very least non-consensus advice that the application should proceed. Neither form of advice is consistent with Module 3 .1 of the Guidelines." (Final Declaration at ¶ 127.) The Panel further stated that: "Some of the fault for the outcome falls on the GAC, for not following its own principles. In particular, GAC Operating Principle 47 provides that the GAC is to work on the basis of consensus, and '[w]here consensus is not possible, the Chair shall convey the full range of views expressed by members to the ICANN Board.' The GAC chair clearly did not do so." (Final Declaration at ¶ 128.) According to the Panel, "[i]f the GAC had properly relayed [the] serious concerns [expressed by certain GAC members] as formal advice to the ICANN Board under the second advice option in Module 3.1 of the Guidebook, there would necessarily have been further inquiry by and dialogue with the Board." (Final Declaration at ¶ 129.) "It is difficult to accept that ICANN' s core values of transparency and fairness are met, where one GAC member can not only block consensus but also the expression of serious concerns of other members in advice to the Board, and thereby cut off further Board inquiry and dialogue." (Final Declaration at ¶ 130.)

In sum, the Panel stated that it "is not convinced that just because the GAC failed to express the GCC's concerns (made in their role as GAC members) in the Durban Communiqué that the Board did not need to consider these concerns." (Final Declaration at ¶ 131.) The Panel further stated that the Board should have reviewed and considered the GAC member concerns expressed in the GAC Durban Meeting Minutes (which, it should be noted, were posted by the GAC in November 2013 – one month after the NGPC's 10 September 2013 Resolution to continue processing the .PERSIANGULF application), the "pending Community Objection, the public awareness of the sensitivities of the 'Persian Gulf'-'Arabian Gulf' naming dispute, [and] the Durban Communiqué itself[, which] contained an express recommendation that 'ICANN collaborate with the GAC in refining, for future rounds, the Applicant Guidebook with regard to the protection of terms with national, cultural, geographic and religious significance.'" (Final Declaration at ¶ 131.)

In addition, the Panel concluded that "the GCC's due process rights" were "harmed" by the Board's decision to proceed with the application because, according to the Panel, such decision was "taken without even basic due diligence despite known controversy." (Final Declaration at ¶ 148.) And, according to the Panel, the "basic flaws underlying the Board's decision cannot be undone with future dialogue." (Final Declaration at ¶ 148.) The Panel therefore recommended that "the ICANN Board take no further action on the '.persiangulf' gTLD application, and in specific not sign the registry agreement with Asia Green, or any other entity, in relation to the '.persiangulf' gTLD." (Final Declaration at pg. 44, X.2.)

Prior Board Consideration:
The Board considered the Final Declaration and the Costs Declaration at its 16 March 2017 meeting. After thorough review and consideration of the Panel's findings and recommendation, the Board noted that the Panel may have based its findings and recommendation on what may be unsupported conclusions and/or incorrect factual premises.

The Board determined that further consideration and analysis of the Final Declaration was needed, and directed the ICANN President and CEO, or his designee(s), to conduct or cause to be conducted a further analysis of the Panel's factual premises and conclusions, and of the Board's ability to accept certain aspects of the Final Declaration while potentially rejecting other aspects of the Final Declaration. (See Resolution 2017.03.16.08, available at https://www.icann.org/resources/board-material/resolutions-2017-03-16-en....)

Board Accountability Mechanisms Committee Review and Recommendation:
Pursuant to the Board's directive, the Board Accountability Mechanisms Committee (BAMC) reviewed the Final Declaration, conducted an analysis regarding the Board's ability to accept certain aspects of the Final Declaration while rejecting other aspects, and considered various options regarding the Panel's recommendation that the "Board take no further action on the '.persiangulf' gTLD application, and in specific not sign a registry agreement with Asia Green, or any other entity, in relation to the '.persiangulf' gTLD." After extensive analysis and discussion, the BAMC has recommended that the Board refute certain of the Panel's underlying factual findings and conclusions, and that the Board treat the statement in the GAC Durban Communiqué regarding .PERSIANGULF as if it were non-consensus advice pursuant to Module 3.1 (subparagraph II) of the Guidebook. Among other things, the BAMC understands that this would require the Board (or its designees) to enter into a dialogue with the relevant members of the GAC to understand the scope of their expressed concerns regarding the .PERSIANGULF application. The BAMC further recommends that the Board direct the BAMC to review and consider the materials related to the .PERSIANGULF matter, including the materials identified by the Panel in the Final Declaration, and provide a recommendation to the Board as to whether or not the application for .PERSIANGULF should proceed.

Board Consideration:
The Board agrees with the BAMC's recommendations. The Board notes that it does not agree with or accept all of the Panel's underlying factual findings and conclusions. For instance:

The Panel concluded that the statement in the GAC Durban Communiqué that the GAC "does not object" to the .PERSIANGULF application was, in effect, "consensus GAC advice that the application should proceed, or at the very least non-consensus advice that the application should proceed." (Final Declaration at ¶ 127.) The Board, however, considers the statement in the Durban Communiqué, indicating that the GAC had "finalized its consideration" of the application and "does not object" to the application proceeding, as effectively providing no advice to the Board regarding the processing of .PERSIANGULF. The Board, nevertheless, can appreciate that the Panel, given all of the information before it, thought that the GAC should have provided non-consensus advice pursuant to Module 3.1 (subparagraph II) in order to convey the concerns expressed by certain GAC members.
The Panel concluded that the Board should have but did not consider "the Durban Minutes, the pending Community Objection, and public awareness of the sensitivities of the 'Persian Gulf'-'Arabian Gulf' naming dispute," along with the "express recommendation" in the Durban Communique "that 'ICANN collaborate with the GAC in refining, for future rounds, the Applicant Guidebook with regard to the protection of terms with national, cultural, geographic and religious significance.'" (Final Declaration at ¶ 131.) The Board takes issue with the Panel's conclusion. The Panel appears to not have given proper recognition to, among other things, the Board's awareness of and sensitivity to the GCC's concerns.
The Panel concluded that the Board was required to request and review the minutes of the GAC Durban meeting in making its determination regarding the .PERSIANGULF application. According to the Panel, "[i]t is difficult to accept that the Board was not obliged to consider the concerns expressed in the Durban Minutes if it had access to the Minutes. If it was not given the Minutes, it is equally difficult to accept that the Board - as part of basic due diligence - would not have asked for draft Minutes concerning GAC discussions of such a geo-politically charged application." (Final Declaration at ¶ 134.) The Board disagrees. First, the GAC Durban meeting minutes were not available when the NGPC passed its resolution regarding the .PERSIANGULF application – the GAC Durban Communiqué was issued on 18 July 2013; the NGPC passed its Resolution on 10 September 2013; and the GAC Durban meeting minutes were posted by the GAC in November 2013. Second, GAC meeting minutes do not constitute a communication from the GAC to the ICANN Board, and do not constitute GAC advice.
In making its recommendation, the Panel concluded that: "Here, given the harm caused to the GCC's due process rights by the Board's decision - taken without even basic due diligence despite known controversy - to allow Asia Green's '.persiangulf' gTLD application to go forward, adequate redress for the GCC requires us to recommend not a stay of Asia Green's application but the termination of any consideration of '.persiangulf' as a gTLD. The basic flaws underlying the Board's decision cannot be undone with future dialogue. In recognition of ICANN's core values of transparency and consistency, it would seem unfair, and could open the door to abuse, for ICANN to keep Asia Green's application open despite the history. If issues surrounding '.persiangulf' were not validly considered with the first application, the IRP Panel considers that any subsequent application process would subject all stakeholders to undue effort, time and expense." (Final Declaration at ¶ 148.) The Board disagrees and takes issue with the Panel's conclusion that further dialogue would be futile. If, as the Panel has stated, the advice provided by the GAC should have included "the full range of views expressed by members" of the GAC and thereby "necessarily" triggered "further inquiry by and dialogue with the Board" pursuant to the non-consensus advice option in Module 3.1 (subparagraph II) of the Guidebook, then such further dialogue should occur before a determination is made regarding the current .PERSIANGULF application.
Notwithstanding the refuted points noted above, the Board has determined that it should treat the GAC statement in the Durban Communiqué regarding .PERSIANGULF as if it were non-consensus advice pursuant to the second advice option in Module 3.1 (subparagraph II) of the Guidebook. The Board is taking this action for primarily two reasons. First, as the Panel noted, and the Board agrees, the GAC "sent a missive [in the Durban Communiqué] that fell outside all three permissible forms for its advice." The Board appreciates how the Panel thought that the GAC advice should have been provided pursuant to the second advice option in Module 3.1 (subparagraph II) of the Guidebook. Specifically, the Panel noted, among other things, that: (i) the .PERSIANGULF application was the subject of a GAC Early Warning; (ii) the GAC's Beijing Communiqué (in April 2013) indicated that "further consideration may be warranted" at the GAC's Durban meeting (in July 2013) regarding the .PERSIANGULF string; and (iii) certain GAC members expressed concerns about .PERSIANGULF during the GAC Durban meeting. While the Board was aware of the GAC Early Warning and the Beijing Communiqué, it did not have access to the GAC Durban meeting minutes when it passed the 10 September 2013 Resolution to continue processing .PERSIANGULF, unlike the Panel, which did have access to those minutes when it issued its Final Declaration.

Second, and in the light of the Final Declaration in this matter, the Board notes inconsistencies in the GAC's handling and communications regarding the .PERSIANGULF and the .HALAL/.ISLAM applications. Both were the subject of GAC Early Warnings and both were the subject of concerns expressed by members of the GAC during a GAC meeting. However, how the GAC ultimately treated these two matters and how the GAC articulated them to the Board was decidedly different in each case: (a) with respect to the .HALAL/.ISLAM strings, the GAC provided non-consensus advice to the Board explicitly 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]); whereas (b) with respect to the .PERSIANGULF string, the GAC provided no advice but rather stated that the GAC had "finalized its consideration" of the .PERSIANGULF string and "does not object" to the application proceeding (Durban Communiqué, available at http://archive.icann.org/en/meetings/durban2013/bitcache/GAC%20Communiqu... [PDF, 110 KB]).

Based upon the foregoing, and in order to address the Panel's concerns, the Board believes that treating the statement in the GAC Durban Communiqué regarding .PERISANGULF as if it were non-consensus advice pursuant to Module 3.1 (subparagraph II) of the Guidebook and entering into a dialogue with the relevant members of the GAC to understand the scope of their concerns regarding the .PERSIANGULF application is the best course of action and consistent with the way a similar circumstance (in the .HALAL/.ISLAM matter) has been handled. In addition, conducting a further review and consideration of the materials related to the .PERSIANGULF matter, including the materials identified by the Panel in the Final Declaration (those available both before and after the NGPC's 10 September 2013 Resolution to continue processing the .PERSIANGULF application), would assist the Board in conducting an evaluation of the current .PERSIANGULF application as well as provide the GCC with the due process that the Panel considered was not previously adequate.

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 new 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 ICANN organization in the amount that the Panel declared ICANN should reimburse the prevailing party. Entering into a dialogue with the relevant GAC members and conducting a further review of the materials regarding the .PERSIANGULF matter 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.