[council] Independent Review Panel decision regarding .xxx

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Sun Feb 21 01:35:45 UTC 2010

Hello All,

Note that the Independent Review Panel has issued its findings with
respect to ICM (applicant for .xxx in the last new gTLD round) and
ICANN.    It will be something else for the Board to consider in

Bruce Tonkin


152. The Panel concludes, for the reasons stated above, that:

First, the holdings of the Independent Review Panel are advisory in
nature; they do not constitute a binding arbitral award.

Second, the actions and decisions of the ICANN Board are not entitled
to deference whether by application of the "business judgment" rule or
otherwise; they are to be appraised not deferentially but objectively.

Third, the provision of Article 4 of ICANN's Articles of Incorporation
prescribing that ICANN "shall operate for the benefit of the Internet
community as a whole, carrying out its activities in conformity with
principles of international law and applicable international conventions
local law," requires ICANN to operate in conformity with relevant
principles of law (such as good faith) as well as relevant principles of
international law, applicable international conventions, and the law of
State of California.

Fourth, the Board of ICANN in adopting its resolutions of June 1, 2005,
found that the application of ICM Registry for the .XXX sTLD met the
sponsorship criteria.

Fifth, the Board's reconsideration of that finding was not consistent
with the application of neutral, objective and fair documented policy.

Sixth, in respect of the first foregoing holding, ICANN prevails; in
respect of the second foregoing holding, ICM Registry prevails; in
respect of
the third foregoing holding, ICM Registry prevails; in respect of the
foregoing holding, ICM Registry prevails; and in respect of the fifth
holding, ICM Registry prevails. 

Accordingly, the prevailing party is ICM Registry. 

It follows that, in pursuance of Article IV, Section 3(12) of the
Bylaws, ICANN shall be responsible for bearing all costs of the IRP
Each party shall bear its own attorneys' fees. Therefore, the
fees and expenses of the International Centre for Dispute Resolution,
$4,500.00, shall be borne entirely by ICANN, and the compensation and
expenses of the Independent Review Panel, totaling $473,744.91, shall be
borne entirely by ICANN. ICANN shall accordingly reimburse ICM Registry
with the sum of $241,372.46, representing that portion of said fees and
expenses in excess of the apportioned costs previously incurred by ICM

Judge Tevrizian is in agreement with the first foregoing conclusion but
not the subsequent conclusions. His opinion follows.

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