Further Consideration of the Gulf Cooperation Council v. ICANN 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.]" (Resolution 2013.09.10.NG03 (Annex 1), https://www.icann.org/resources/board-material/resolutions-new-gtld-2013....) The NGPC adopted this resolution after receiving the Governmental Advisory Committee (GAC) Durban Communiqué indicating that the GAC had "finalized its consideration" of the .PERSIANGULF application and "does not object" to the application proceeding. (GAC Durban Communiqué, https://archive.icann.org/en/meetings/durban2013/bitcache/GAC%20Communiq... [PDF, 110 KB].) In its IRP, 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." (IRP Request, para. 3, 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, 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 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, para. 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 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." (Final Declaration, para. 127.) 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, para. 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, para. 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, para. 131.) The Panel further stated that the Board should have reviewed and considered the GAC member concerns that were reflected 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, para. 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, para. 148.) Further, according to the Panel, the "basic flaws underlying the Board's decision cannot be undone with future dialogue." (Final Declaration, para. 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, 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 IRP 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. (Resolution 2017.03.16.08, https://www.icann.org/resources/board-material/resolutions-2017-03-16-en....) The Board further considered the Final Declaration and Costs Declaration at the Board meeting on 23 September 2017. The Board determined that further review was needed; no resolution was taken.

The Board further considered the Final Declaration at its meeting on 15 March 2018. The Board accepted that the IRP Panel declared the GCC as the prevailing party in the GCC IRP, and that ICANN reimburse the GCC its IRP costs, which was completed in April 2018. In its Rationale, the Board specifically noted that it does not agree with or accept all of the Panel's underlying factual findings and conclusions, identifying several specific refuted points. (Rationale, https://www.icann.org/resources/board-material/resolutions-2018-03-15-en....) The Board further directed the Board Accountability Mechanisms Committee (BAMC): (i) to follow the steps required as if the GAC provided non-consensus advice to the Board pursuant to Module 3.1 (subparagraph II) of the Guidebook regarding .PERSIANGULF; (ii) to review and consider the relevant materials related to the .PERSIANGULF matter; and (iii) to provide a recommendation to the Board as to whether or not the application for .PERSIANGULF should proceed. (Resolutions 2018.03.15.12-2018.03.15.14, https://www.icann.org/resources/board-material/resolutions-2018-03-15-en....)

Board Accountability Mechanisms Committee Review and Recommendation:

Pursuant to the Board's directive, the BAMC followed the steps required as if the GAC provided non-consensus advice to the Board pursuant to Module 3.1 (subparagraph II) of the Guidebook regarding .PERSIANGULF by engaging in a dialogue with concerned members of the GAC regarding .PERSIANGULF on 28 June 2018, at ICANN62 in Panama City. Representatives from the United Arab Emirates (UAE), Bahrain, and Oman attended the dialogue. In addition, the UAE representative indicated that he was speaking on behalf of his own country as well as on behalf of Kuwait and the Gulf Cooperation Council (whose members are the UAE, Bahrain, Oman, Kuwait, Saudi Arabia, and Qatar). The UAE and Bahrain representatives reiterated the previously-expressed concerns regarding the .PERSIANGULF application, referencing the long-standing "Arabian Gulf" vs. "Persian Gulf" naming dispute. The representatives noted that: the "Persian Gulf" name "misrepresents what we believe as our region"; this is a "very, very sensitive" issue; all but one of the countries bordering the body of water do not recognize the "Persian Gulf" name; if the "Persian Gulf" name was permitted, "it would spur more of an emotional setback to the rest of the region that others would recognize that [name] as being a body of water that is related to one country, and it's not"; and they "don't envisage any solution other than…the application being terminated." (See transcript, Attachment C to the Reference Materials.)

In addition, and in accordance with the Board's Resolution, the BAMC reviewed and considered the relevant materials related to the .PERSIANGULF matter – including the comments submitted by the ICANN community regarding the application; the correspondence from the governments of the UAE, Bahrain, Qatar, Oman, Kuwait, the League of Arab States (representing 22 member States), and the GCC (representing six member States) expressing concerns and objections regarding the application; the GAC Early Warning indicating the concerns of the governments of the UAE, Bahrain, Qatar, and Oman; the determination of the ICANN Independent Objector, noting the positions of the concerned parties; the Expert Determination dismissing the GCC's community objection, noting the positions advanced by both the GCC and Asia Green; the GAC Beijing and Durban Communiqués; and the GAC Durban Meeting Minutes. It should be noted that certain of these materials were available only after the NGPC's 10 September 2013 decision to continue processing the application.

After extensive analysis and discussion, and after considering various options regarding the IRP 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," the BAMC recommended that the Board adopt the portion of the IRP Panel's recommendation that the application for .PERSIANGULF submitted in the current new gTLD round not proceed. The BAMC recommended this action based not only on its due diligence and care in considering the IRP Panel Declaration and reviewing all relevant materials, but also on its consideration of and commitment to ICANN's Mission and core values set forth in the Bylaws, including ensuring that this decision is in the best interest of the Internet community and that it respects the concerns raised by a large portion of the community most impacted by the proposed .PERSIANGULF gTLD. The BAMC, however, did not recommend that the Board prohibit potential future applications (by any applicant) for .PERSIANGULF given that new rules and criteria might be established for a future gTLD application round that have not been considered at this time.

Board Consideration:

The Board agrees with the BAMC's recommendation to not proceed with the pending application for .PERSIANGULF and to not prohibit potential future applications (by any applicant) for .PERSIANGULF. Future rounds of new gTLD applications may be subject to different procedures and/or a different version of the Guidebook; therefore, it is important to leave open the option for future applications for .PERSIANGULF, which may be evaluated through a different set of rules and procedures that have not been considered at this time. The Board again notes that it does not agree with or accept all of the Panel's underlying factual findings and conclusions, as explained more fully in its Rationale for Resolutions 2018.03.15.12 – 2018.03.15.14 (https://www.icann.org/resources/board-material/resolutions-2018-03-15-en...), which are incorporated in this Rationale as if set forth fully here.

Notwithstanding the refuted points referenced above and noted in Resolutions 2018.03.15.12 – 2018.03.15.14, the Board thinks that adopting the Panel's recommendation as it relates to the current new gTLD round is the right thing to do in that it reflects the Board's acceptance of certain portions of the IRP Panel's findings, including that the GCC is the prevailing party. In addition, the IRP Panel conducted a lengthy review and analysis of the materials presented in this IRP and, based upon that analysis, the Panel came to the conclusion that Asia Green's application for .PERSIANGULF should not proceed. The Board acknowledges that the Panel conducted an independent analysis of both the underlying materials and the arguments presented in the IRP, and came to its own decision regarding the merits. In adopting the Panel's recommendation as it relates to the current new gTLD round, the Board is respecting the principle and role of the independent review panel and its analysis.

In addition, the Board, in exercising its own independent judgment, thinks that adopting the portion of the Panel's recommendation that the application for .PERSIANGULF submitted in the current new gTLD round not proceed is the right thing to do based upon, among other things, the Board's own review and analysis of the 28 June 2018 dialogue with concerned members of the GAC, all materials relevant to the .PERSIANGULF matter (some of which were available only after the NGPC's 10 September 2013 decision), the discretion conferred upon the Board by the Guidebook, and the Mission and core values set forth in ICANN's Bylaws. The Board would also like to point out that it has considered this matter over many meetings – the IRP Panel issued the IRP Final Declarations in October/December 2016 and, since that time, the Board and the BAMC have reviewed and considered the issues relating to the .PERSIANGULF matter during numerous committee or Board meetings.

Based upon the Board's review of the relevant materials, numerous discussions, extensive due diligence, and its dialogue with concerned members of the GAC regarding .PERSIANGULF, it is apparent that the objections and concerns expressed by the governments of the UAE, Bahrain, Qatar, and Oman as early as 2012 continue to be reiterated today by those countries as well as by further countries and entities (such as Saudi Arabia, Kuwait, the Gulf Cooperation Council, and the League of Arab States). These objecting parties have repeatedly expressed their "serious concern" regarding the .PERSIANGULF application – noting that the "naming of the Arabian Gulf has been [a] controversial and debatable subject in various national and international venues and levels" (October 2012 letters from the UAE, Bahrain, Qatar, and Oman; GAC Early Warning [PDF, 93 KB]); the "applicant did not receive any endorsement or support from the community or any of its organizations, or any governmental or non-governmental organization[s] within this community" (October 2012 letters from the UAE, Bahrain, Qatar, and Oman; GAC Early Warning [PDF, 93 KB]); the "Arabian Gulf name is the only and officially recognized and used name in most countries in the Middle East and North Africa and most of the population surrounding it for hundreds of years. The name 'Persian Gulf' is never used by the communities in 7 out of [8] countries bordering the Arabian Gulf" (20 June 2018 letter [PDF, 90 KB] from the government of Kuwait; and 10 July 2018 letter [PDF, 450 KB] from the government of Oman); if the .PERSIANGULF gTLD were permitted, "it would spur more of an emotional setback to the rest of the region that others would recognize that [name] as being a body of water that is related to one country, and it's not" (28 June 2018 Board/GAC dialogue transcript, Attachment C to the Reference Materials); "We don't recognize the name [Persian Gulf]. It is very, very sensitive to us." "[W]e don't envisage any solution other than…the application being terminated" (28 June 2018 Board/GAC dialogue transcript, Attachment C to the Reference Materials).

Under these circumstances, taking the decision to not proceed with the pending .PERSIANGULF application, after reviewing, considering, and discussing the objections raised by the countries and entities representing a large portion of the community most impacted by this proposed gTLD, is in the public interest, is in accordance with the Guidebook provisions that confer upon the Board the discretion to consider individual applications and whether they are in the best interest of the Internet community, and reflects the Board's commitment to ICANN's Mission and core values set forth in the Bylaws, including ensuring that this decision is in the best interest of the Internet community and that it respects the concerns raised by a large portion of the community most impacted by the proposed .PERSIANGULF gTLD.

Specifically, Section 5.1 of the Guidebook provides: "ICANN's Board of Directors has ultimate responsibility for the New gTLD Program. The Board reserves the right to individually consider an application for a new gTLD to determine whether approval would be in the best interest of the Internet community. Under exceptional circumstances, the Board may individually consider a gTLD application. For example, the Board might individually consider an application as a result of GAC advice on New gTLDs or the use of an ICANN accountability mechanism." (Guidebook, Section 5.1, https://newgtlds.icann.org/en/applicants/agb.) Moreover, in applying for the gTLD, the applicant acknowledged and agreed that the Board has the discretion to make such a decision – "Applicant acknowledges and agrees that ICANN has the right to determine not to proceed with any and all applications for new gTLDs, and that there is no assurance that any additional gTLDs will be created. The decision to review, consider and approve an application to establish one or more gTLDs and to delegate new gTLDs after such approval is entirely at ICANN discretion." (Guidebook, Section 5.1, https://newgtlds.icann.org/en/applicants/agb.)

This decision is also in keeping with ICANN's core values as set forth in the operative Bylaws, in particular those mentioned below, in that it takes into consideration the broad, informed participation of the Internet community and those members most affected, it respects ICANN's accountability mechanisms, and it recognizes the concerns expressed by the countries and entities representing a large portion of the affected community (Bylaws, https://www.icann.org/resources/pages/bylaws-2012-02-25-en; and similarly reflected in the current Bylaws, https://www.icann.org/resources/pages/governance/bylaws-en):

Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making.
Acting with a speed that is responsive to the needs of the Internet while, as part of the decision-making process, obtaining informed input from those entities most affected.
Remaining accountable to the Internet community through mechanisms that enhance ICANN's effectiveness.
While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account governments' or public authorities' recommendations.
While the Board strives to follow all the core values in making its decisions, it is also the Board's duty to exercise its independent judgment to determine if certain core values are particularly relevant to a given situation. And, in fact, the operative Bylaws anticipate and acknowledge that ICANN may not be able to comply with all the core values in every decision made and allows for the Board to exercise its judgment in the best interests of the Internet community: "…because [the core values] are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values." (Bylaws, https://www.icann.org/resources/pages/bylaws-2012-02-25-en.)

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, recognizing the input received from the Internet community, and abiding by the policies and procedures set forth in the Guidebook, which were developed through a bottom-up consensus-based multistakeholder process over numerous years of community efforts and input, and is consistent with ICANN's core values.

Taking this decision is not expected to have a direct financial impact on the ICANN organization and 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.