In 2012, when applications for Generic Top Level Domains (gTLDs) were first opened, seven registries applied to administer .WEB, including Nu Dot Co (NDT), Donuts and Afilias. In such a situation, given the multiplicity of candidates, they are invited to reach an agreement. Otherwise, the Internet Corporation for Assigned Names and Numbers (ICANN) organizes an auction. In this case, the history of .WEB is remarkable since, during the negotiation phase, an additional player intervened in the discussions, namely Verisign. Indeed, the latter had entered into an agreement with NDT by which Verisign would acquire the .WEB gTLD in the event that NDT won the auction. NDT won, and Verisign acquired the gTLD. A few other candidates had touted the method.
Consequently, Donuts sued ICANN in the Californian courts. However, the latter declared themselves incompetent (see Ruby Glen, LLC v. Internet Corporation for Assigned Names & Numbers, CV 16-5505 PA (ASx)) since the decision emanating from the panel constituted within the framework of the Independent Review Process (IRP) (Section 4.3. Of the ICANN Bylaws) presents all aspects of an arbitral award, i.e. adjudicative (it is binding on the parties) and exclusive (the panel has an exclusive jurisdiction) (Section 4.3. (x) of the ICANN Bylaws: icann.org). However, the entirely arbitral nature of the decision could be undermined by the possibility for the panel to formulate recommendations, which are by nature non-binding and, in a less convincing manner, by the qualification of “declaration”, to the detriment of the term “arbitral award”.
After numerous negotiations and procedures of various kinds, Afilias sued ICANN on November 14, 2018, by filing a request for arbitration with the International Center for Dispute Resolution (ICDR), the only institution appointed by ICANN to administer arbitration proceedings arising from the IRP. In its decision dated May 20, 2021 (icann.org), the panel considered that ICANN had violated its own bylaws, in particular, by refusing to rule on the validity of the agreement between NDT and Verisign in light of the Applicant Guidebook and Auction Rules. Furthermore, the panel members added that it is not for them to take the place of the ICANN board of directors (ICDR Case No. 01-18-0004-2702, Afilias Domains No. 3 Ltd. v. ICANN, May 20 2021: icann.org). In other words, ICANN must decide once and for all. In a press release dated May 25, 2021, ICANN assured that its board of directors would do everything in its power to enforce the award and review the panel’s recommendations as soon as feasible while inviting the parties to find an amicable solution (icann.org, 2021-05-25). Given the situation, this statement may seem ironic.
