23 October 2017 - Post by:David Stone
Amazon filed applications for the .AMAZON top-level domains in several scripts in 2012. Five years later, ICANN will re-examine the applications after an Independent Review Process (“IRP”) proceeding. The IRP Panel found that ICANN’s Board failed to demonstrate the existence of public policy reasons for denying the applications.
The early stages of the .AMAZON application process
ICANN opened the door for private companies to register top-level domains (named gTLDs) in 2012. Amazon EU S.à.r.l. applied for the .AMAZON gTLD and the Chinese and Japanese equivalents in May 2012 (the .AMAZON Applications).
On 20 November 2012, the governments of Brazil and Peru filed a Governmental Advisory Committee (GAC) Early Warning, setting out their concerns with the .AMAZON Applications, stating that: “Granting exclusive rights to this specific gTLD to a private company would prevent the use of this domain for purposes of public interest related to the protection, promotion and awareness raising on issues related to the Amazon biome.”
The .AMAZON Applications passed ICANN’s Initial Evaluation with perfect scores. In particular, ICANN’s Geographic Names Panel determined that .AMAZON did not fall within the criteria for a geographic name contained in the gTLD Applicant Guidebook Section 18.104.22.168.
The gTLD Applicant Guidebook spells out which geographic names are prohibited and which require the approval or documentation of non-objection of the relevant government. In this case, the .AMAZON Applications were not found to fall within any of the categories set out in the Applicant Guidebook.
At ICANN’s Durban meeting on 18 July 2013, the GAC advised ICANN, based on the objections raised by the governments of Brazil and Peru, that the .AMAZON Applications should not proceed. This created a strong presumption for the ICANN Board that the .AMAZON Applications should not be approved under the gTLD Applicant Guidebook.
Amazon responded to the GAC’s position on 23 August 2013, arguing that ICANN should reject the GAC’s advice because: (i) it was inconsistent with international law; (ii) it would have discriminatory impacts that conflict directly with ICANN’s Bylaws; and (iii) it contravened policy recommendations implemented within the Applicant Guidebook achieved by international consensus over many years.
In January 2014, an Expert Determination dismissed a community objection raised by an Independent Objector – an objection based largely on the arguments put forward by Peru and Brazil against the .AMAZON Applications.
ICANN’s first decision on the .AMAZON Applications
On 14 May 2014, ICANN published a Board Resolution accepting the GAC’s advice, so that the .AMAZON Applications would not proceed.
Following this decision, Amazon requested an IRP proceeding, as permitted under Section 4.3 of Article 3 of the ICANN Bylaws. This arbitration proceeding enables an independent third-party to review ICANN’s decision and ensure, for example, that ICANN complied with its own Bylaws and is accountable to the global Internet community and the claimant.
The IRP Panel’s declaration and what it means for the application process
The IRP Panel issued a Final Declaration on 10 July 2017. The IRP Panel agreed that “Amazon has established that ICANN’s Board… acted in a manner inconsistent with ICANN’s Bylaws”, and recommended that the ICANN Board “promptly re-evaluate Amazon’s applications” and make an “objective and independent judgement regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications.” The IRP also asked the Board to explain its reasons if the Board affirms its earlier decision that the .AMAZON Applications should not proceed. All three IRP Panellists, including the Panellist appointed by ICANN, were unanimous in the above conclusion.
In addition, the Majority Declaration found that ICANN created “a conclusive or irrebuttable presumption for the GAC consensus advice” – effectively a GAC veto – by failing to evaluate if the GAC advice was well-founded and merits-based. The ICANN-appointed Panellist disagreed with these statements.
According to ICANN’s Bylaws at Section 4.3(x)(3): “Where feasible, the Board of ICANN shall consider its response to IRP Panel decisions at the Board’s next meeting, and shall affirm or reject compliance with the decision on the public record based on an expressed rationale.” On 23 September 2013, the ICANN Board acknowledged receipt of the Final Declaration and asked that the Board Accountability Mechanisms Committee review the IRP recommendations and provide options to the Board in “addressing the Panel’s recommendation.”
ICANN holds its Annual General Meeting in Abu Dhabi from 28 October to 3 November 2017. Some action on the .AMAZON Applications is likely during the meeting. It is possible that the ICANN Board will refer the matter back to the GAC for further advice, or that the GAC will decide to issue new advice on its own initiative.
Reactions to the IRP declaration
On 7 September 2017, Amazon Vice Presidents Scott Hayden and Brian Huseman wrote to the ICANN Board asking for a re-evaluation of the .AMAZON Applications in light of the IRP’s declaration. In an article published alongside the letter, Huseman writes that Amazon proposed to support a future gTLD to represent the region using terms such as .AMAZONIA, .AMAZONICA or .AMAZONAS, and offered to reserve for the relevant governments domain names that could cause confusion or touch on national sensitivities. These offers had been in place since Amazon’s 2013 proposed Public Interest Commitment to the .AMAZON Applications.
In the letter, Amazon submits that the Board should not refer the issue back to the GAC. The letter states: “We are aware that governmental pressure on the Board in connection with matters of Internet governance, although unrelated to the .AMAZON Applications, is of concern to ICANN. Such pressure does not change the truth — that for four years Brazil and Peru have been unable to provide legally and factually sound reasons for rejecting the .AMAZON Applications. If the Board yields to such pressure, it will undermine ICANN’s leadership in advancing the multistakeholder approach to Internet governance.” The letter also asks the Board for the opportunity to present and answer questions about the .AMAZON Applications before the Board decides on them.
On 20 September 2017, the Brazilian Ambassador, Benedicto Fonseca Filho, wrote to the ICANN Board, expressing concerns surrounding Amazon’s 7 September letter. Specifically Filho states that: “if the Board were, now, required to substitute the views of Governments and the GAC for its own judgement of what are the public policy issues justifying its decisions … it would be dealing a fatal blow to the multi-stakeholder governance model upon which ICANN is based.” That notion would likely be challenged by supporters of ICANN’s independence and accountability, who desire to see ICANN guided by the community-developed rules. The letter also questions why all three IRP Panellists in the IRP proceeding were US jurists, when the objection came from non-US parties. It states that, even if not required by international arbitration rules, fairness required the appointment of a non-US national as Panellist. However, it should be noted that the IRP was based on International Chamber of Commerce arbitration rules, which permitted ICANN to appoint a non-US Panellist and for the two appointed Panellists to select a non-US jurist as the third Panellist.
Both parties claim that either decision to approve or reject the .AMAZON Applications could damage the multi-stakeholder governance model.
ICANN could refer the issue back to the GAC. This could potentially create further uncertainty for current and prospective gTLD applicants, but would be consistent with its usual approach of following the GAC’s advice. ICANN, however, will still need to decide on the issue following such a referral, because of the IRP’s statement that: “the Board cannot simply accept GAC consensus advice as conclusive”.
Alternatively, ICANN could decide the issue independently of the GAC. This would swiftly clarify the organization’s stance on the issue, but it could also challenge the role of the GAC in the application process. Whatever happens, gTLD applicants should certainly follow the developments at the Abu Dhabi meeting closely.
David Stone is a Partner at Allen & Overy and teaches on the Oxford IP Diploma course and the IP Magister Lvcentinvs course at the University of Alicante.