Request for the administration of Expert proceedings regarding the Final Reviewof the Limited Public Interest Objection against Ruby Pike, LLC’s application for.HOSPITAL.
With this letter the Internet Corporation for Assigned Names and Numbers (ICANN)
requests the International Centre for ADR (the Centre) of the International Chamber ofCommerce (ICC) to appoint a panel of experts (the Panel) and administer the Expert
proceedings in accordance with the ICC Expert Rules for Administration of Expert
Proceedings (the Rules).
Given the specificities of this Request the attention of the Centre and the Panel is drawnto Article 14(4) of the Rules.
The task of the Panel will be to review (Final Review) and possibly render a decision(Final Expert Determination) in accordance with the instructions provided herewith.
The Final Expert Determination will be used by ICANN as part of the evaluation
process for the new gTLD application for the .HOSPITAL string.
ICANN requests that the Centre ensures through the administration of these proceedingsthat the conduct of the procedure and the Final Expert Determination rendered in theseproceedings will be impartial and entirely independent from ICANN.
This Request is submitted to the Centre on the basis of the ICANN Board’s Resolutions
2016.02.03.12 – 2016.02.03.13 (the 3 February 2016 Board Resolution). (Seehttps://www.icann.org/resources/board-material/resolutions-2016-02-03-en#2.c.)I.

The Party

The sole party in these proceedings is:Internet Corporation for Assigned Names and Numbers (ICANN)
12025 Waterfront Drive, Suite 300,
Los Angeles, CA 90094
Contact persons: Amy Stathos
Email: amy.stathos@icann.org
Telephone: 310-301-3866
Elizabeth Le
Email: elizabeth.le@icann.org
Telephone: 310-578-8902
II.

Related Entities and Persons

The following entities and persons are related to these proceedings:
1) Prof. Alain Pellet (France);
2) RUBY PIKE, LLC (USA);	  3) DOZEN DONUTS, LLC
4) DONUTS, INC
5) Mr. Daniel Schindler (USA);
6) Mr. Jon Nevett (USA);7) Ms. Héloïse Bajer-Pellet (France);8) Mr. Daniel Müller (France);9) Law firm VAN DEN BIESEN KLOOSTRA ADVOCATEN (The Netherlands);
10) Mr. Sam Wordsworth from ESSEX COURT (UK);
11) Law firm THE IP & TECHNOLOGY LEGAL GROUP, P.C. (USA);
12) Mr. Piotr Nowaczyk (Poland);
13) DENTONS (Poland);14) Mr. August Reinisch (Austria);
15) University of Vienna (Austria);16) Mr. Ike Ehiribe (UK, Nigeria).
III.

Rules Applicable to the Proceedings

These proceedings will be conducted pursuant to the Rules.
Given that ICANN is the only party to these proceedings, ICANN recognizes that theRules might need to be adapted to accommodate one-party proceedings only. In theevent that such modifications to the Rules are necessary, ICANN expressly agrees andrequests that the Centre carry them out in the spirit of the Rules as provided for inArticle 14(4) of the Rules and without contacting ICANN.
Moreover, ICANN waves its right to be informed of the procedural considerations
under the Rules (such as appointment of the Experts and possible replacements, transferof the file or extensions of the time limits) and to comment on the procedural steps
under the Rules (such as Experts’ hourly rate and possible disclosures of the Experts).
However, should the Centre deem it is necessary to seek ICANN’s comments, it can doso.
IV.

BackgroundIn the framework of the New Generic Top Level Domain (New gTLD) Program,ICANN invited applications for the new registries of the top level domain names. In	  order to protect certain existing interests and rights, ICANN put in place a disputeresolution procedure. The procedure provided a path for formal objections during theapplication evaluation process and allowed a party with standing to have its objection
considered before a panel of qualified experts. This procedure is governed by the New
gTLD Applicant Guidebook, Module 3 (Guidebook), and its attachment, New gTLD
Dispute Resolution Procedure (Procedure), as well as by the relevant rules of thedispute resolution service providers. In cases where ICC was such a provider, ICC
Expertise Rules were applicable.
All the mentioned rules and procedures are accessible at the following website:
http://www.iccwbo.org/products-and-services/arbitration-and-adr/icann-new-gtlddispute-resolution/documents/.
ICANN also established a figure of the Independent Objector (the IO) in order to ensurethat the best interest of the public using the global Internet is preserved. The IO’s role
was to file objections on behalf of the Internet community independently from ICANN.
Prof. Alain Pellet acted as the IO during the objection period.
Among other objections, the IO filed nine limited public interest (LPI) objections(Article 2(e) of the Procedure) against health related applications. The 3 February 2016
Board Resolution and the subject of the Final Review relates to a LPI objection filed by
the IO against the application for the gTLD string .HOSPITAL applied for by Ruby
Pike, LLC (Application ID: 1-1505-15195) (.HOSPITAL LPI Objection).
This objection was filed on 12 March 2013. The dispute resolution service provider ofthe LPI objection procedure in this case was ICC. The ICC case number of thisproceeding was EXP/412/ICANN/29.
In the framework of the objection procedure and in accordance with the Guidebook andthe Procedure, Ruby Pike, LLC (Applicant) submitted its reply to the .HOSPITAL LPI
Objection on 16 May 2013 (Article 11 of the Procedure) (Reply). The parties also
submitted additional briefings at the approval of the Panel.
ICC appointed a three-member panel on 14 June 2013. This panel rendered its expert
determination (.HOSPITAL Expert Determination) in accordance with Article 21 of theProcedure. The majority decision provided that the Objection was successful. Moreover,a Dissenting Opinion was rendered by one of the co-Experts.
Following the issuance of the expert determination in .HOSPITAL LPI Objection, theApplicant challenged the reasonableness of the underlying expert determination as partof the application process. Specifically, the Applicant contends that the .HOSPITAL
Expert Determination deviates from all other health-related LPI expert determinations
and that the result is inconsistent and unreasonable; that the materials submitted by theIO and the applicants to the expert panels in the nine LPI health related objection
proceedings were very similar and, in some instances, nearly identical but that the.HOSPITAL Expert Determination is the only LPI objection where the expert
determination was in favor of the objector rather than the applicant. The Applicant
further argues the underlying .HOSPITAL LPI Objection expert panel was the only
health related LPI objection expert panel that evaluated the sufficiency of certain	  protections and safeguards while other expert panels deferred to ICANN to implement
and enforce such safeguards as necessary. In its 3 February 2016 Board Resolution, theICANN Board found that the underlying .HOSPITAL Expert Determination isseemingly inconsistent with the expert determinations resulting from all other healthrelated LPI objections thereby rendering it potentially unreasonable, and thus warranted
re-evaluation. (See 3 February 2016 Board Resolution available athttps://www.icann.org/resources/board-material/resolutions-2016-02-03-en#2.c.)
The 3 February 2016 Board Resolution directing re-evaluation of the .HOSPITAL LPI
Objection states that, as part of its evaluation, the Panel should also review asbackground the eight heath-related limited public interest objection expertdeterminations that are listed in Annex A (the Related LPI Expert Determinations).	  
V.

Language of the Proceedings

ICANN requests that the language of these proceedings is English.
VI.

Place of the Proceedings

There shall be no meetings, site visits nor hearings in this matter.
The place of the present proceedings shall be Paris, France.
VII.

Timing of the Proceedings

The draft Expert Determination shall be rendered within 45 days from the transfer of thefile to the Panel.
ICC will take the necessary measures to monitor the above-mentions time-limit.
In exceptional circumstances in which the Panel would ask for an extension of this time
limit, it will be in the Centre's discretion whether to grant it.
VIII. Panel
The Panel shall consist of three experts. One member shall act as the Chair of the Panel.
IX.

Appointment of the Panel

The Centre shall appoint the Panel in accordance with Article 3 of the Rules.
As noted above, ICANN waives its right to comment on any aspects of the appointment
process, including a disclosure and replacement procedure. In case of any disclosures
the Centre has the authority and full discretion to make the decision as to whether thepanelist(s) shall serve or whether another panelist(s) shall be appointed by the Centre.
The Centre is authorized to appoint another panelist(s) if the appointed panelist(s) isunable to serve promptly.	  If a member of the Panel shall become unwilling or unable to serve, the Centre shalladministratively appoint a substitute panelist and a new Chair, if applicable.
X.

Attributes of the Experts

The Experts shall be recognized as eminent jurists of international reputation, at least
one of the Experts should have knowledge of ICANN or the Domain Name System.
They shall not be of French or US nationality.
All Experts shall be impartial and independent from the parties and the related entities.
The Experts shall not be the same as panelists who acted in the proceedings
EXP/412/ICANN/29.
XI.

Expert Mission and Form of the Panel's Work

The Panel shall render a written and reasoned decision (Final Expert Determination).
The purpose of the Final Expert Determination is to establish whether the underlying
expert determination rendered in the above-mentioned proceedings
EXP/412/ICANN/29 was reasonable through an appropriate application of the standardof review as set forth in Module 3 of the Applicant Guidebook.
Accordingly, the Expert mission is to either:-Conclude that the underlying expert determination rendered in the proceedings
EXP/412/ICANN/29 is supported by the standard of review and reference to theRelated LPI Expert Determinations and adopt the underlying expert
determination as the Final Expert Determination; or-Reverse the underlying expert determination rendered in the proceedings
EXP/412/ICANN/29 and render a new Final Expert Determination that shall
replace and supersede the underlying expert determination.

-The Panel may not order a new LPI objection proceeding or send the matterback to the original panelists for consideration or further review.

a) Standard for deciding on whether the underlying expert determination
rendered in the proceedings EXP/412/ICANN/29 was reasonable
The Panel will make its decision on whether the underlying expert determination
rendered in the proceedings EXP/412/ICANN/29 was reasonable in deciding onwhether the expert panel could have reasonably come to the decision reached on theunderlying limited public interest objection through an appropriate application of thestandard of review as set forth in the Applicant Guidebook. As directed by the 3February 2016 Board Resolution, the Panel should also review as background the eight
Related LPI Expert Determinations identified in Annex A.
b) Standard for deciding on the merits of the Objection (if applicable)	  The Panel will render (if applicable) the Final Expert Determination upon the merits ofthe IO’s Objection in applying the standards as identified by ICANN in the gTLD
Applicant Guidebook Module 3 (version of 4 June 2012) relevant to the Limited PublicInterest Objection.
c) Records for the Final Expert Determination
Pursuant to the 3 February 2016 Board Resolution, the Panel shall make its decision
taking into account the following documents, all of which are attached to this letter:-IO’s Objection filed in the proceedings EXP/412/ICANN/29, dated 12 March2013;
Applicant’s Reply filed in the proceedings EXP/412/ICANN/29, dated 15 May2013;
Request from the IO to the panel to allow additional submissions filed in theproceedings EXP/412/ICANN/29, dated 2 August 2013;
Procedural Order No. 1 issued in the proceedings EXP/412/ICANN/29, dated 5
August 2013;
Procedural Order No. 2 issued in the proceedings EXP/412/ICANN/29, dated 9
August 2013;
IO’s Additional Submission filed in the proceedings EXP/412/ICANN/29, dated
12 August 2013;
Procedural Order No. 3 issued in the proceedings EXP/412/ICANN/29, dated 13
August 2013;
Applicant’s Additional Submission filed in the proceedings
EXP/412/ICANN/29, dated 20 August 2013;
Procedural Order No. 4 issued in the proceedings EXP/412/ICANN/29, dated 28
August 2013;
Expert Determination rendered in the proceedings EXP/412/ICANN/29, dated
11 December 2013;
Dissenting Opinion rendered in the proceedings EXP/412/ICANN/29, dated 12December 2013; andThe Related LPI Expert Determinations identified in Annex A.

No party in the proceedings EXP/412/ICANN/29 or any third party shall be entitled tosubmit any additional materials for consideration during these proceedings.
In addition, for rendering the Final Expert Determination (if applicable) the Panel may
apply any rules or principles that it determines to be applicable.
The decision shall be made by the majority of the Experts.
d) Form of the Final Expert Determination
The Panel shall render a written Final Expert Determination. The Panel shall state thereasons for its decision.
e) Expert Mission and Procedural Timetable	  

5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.	  

Procedural Order No. 2 issued in the proceedings EXP/412/ICANN/29,
dated 9 August 2013;
IO’s Additional Submission filed in the proceedings
EXP/412/ICANN/29, dated 12 August 2013;
Procedural Order No. 3 issued in the proceedings EXP/412/ICANN/29,
dated 13 August 2013;
Applicant’s Additional Submission filed in the proceedings
EXP/412/ICANN/29, dated 20 August 2013;
Procedural Order No. 4 issued in the proceedings EXP/412/ICANN/29,
dated 28 August 2013;
Expert Determination rendered in the proceedings EXP/412/ICANN/29,
dated 11 December 2013;
Dissenting Opinion rendered in the proceedings EXP/412/ICANN/29,
dated 12 December 2013;
Expert Determination rendered in the proceedings EXP/416/ICANN/33,
dated 16 December 2013.
Expert Determination rendered in the proceedings EXP/417/ICANN/34,
dated 16 December 2013.
Expert Determination rendered in the proceedings EXP/409/ICANN/26,
dated 6 November 2013.
Expert Determination rendered in the proceedings EXP/411/ICANN/28,
dated 26 November 2013.
Expert Determination rendered in the proceedings EXP/410/ICANN/27,
dated 19 December 2013.
Expert Determination rendered in the proceedings EXP/414/ICANN/31,
dated 19 December 2013.
Expert Determination rendered in the proceedings EXP/415/ICANN/32,
dated 19 December 2013.
Expert Determination rendered in the proceedings EXP/413/ICANN/30,
dated 2 January 2014.
Proof of payment of filing fee.

ANNEX A: RELATED LPI EXPERT DETERMINATIONS
Related LPI Expert Determinations

StringIndependent Objector v. DotHealth, LLC, Case No.
EXP/416/ICANN/33.HEALTH

Independent Objector v. Goose Fest, LLC, Case No.
EXP/417/ICANN/34.HEALTH

Independent Objector v. Afilias Limited, Case No.
EXP/409/ICANN/26.HEALTH

Independent Objector v. Silver Glen, LLC, Case No.
EXP/411/ICANN/28.HEALTHCARE

Independent Objector v. HEXAP SAS, Case No.
EXP/410/ICANN/27.MED

Independent Objector v. Medistry LLC, Case No.
EXP/414/ICANN/31.MED

Independent Objector v. Charleston Road Registry Inc., .MED
Case No. EXP/415/ICANN/32
Independent Objector v. Steel Hill, LLC, Case No.
EXP/413/ICANN/30	  .MEDICAL