THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/424/ICANN/41

UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA
(USA)
vs/
KOSHER MARKETING ASSETS LLC(USA)This document is an original of the Expert Determination rendered in conformity with the
New gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

Before the International Centre for Expertiseof
The International Chamber of Commerce

EXP/424/ICANN/41
in re “.kosher” gTLD

EXPERT DETERMINATION

Union of Orthodox Jewish Congregations of America(USA)– Objector –vs.

Kosher Marketing Assets L.L.C.
(USA)– Applicant –ExpertProfessor Luca G. Radicati di Brozolo

1

TABLE OF CONTENTSI.

INTRODUCTION ........................................................................................................... 3

II.

THE OBJECTOR’S STANDING ............................................................................................ 5

III. THE MERITS OF THE OBJECTION ....................................................................................... 7
III.A

III.B

III.C

Whether the community invoked by the Objector is clearly delineated . 7(a)The position of the Objector.......................................................... 7(b)

The position of the Applicant ........................................................ 9(c)Determination of the Expert ......................................................... 9

Whether there is substantial community opposition to the Application11(a)

The position of the Objector........................................................ 11(b)

The position of the Applicant ...................................................... 12(c)

Determination of the Expert ....................................................... 12

Whether there is a strong association between the KCO community andthe “.kosher” gTLD string .....................................................................14

III.D

(a)

The position of the Objector........................................................ 14(b)

The position of the Applicant ...................................................... 14(c)

Determination of the Expert ....................................................... 15

Whether the Application creates a likelihood of material detriment to asignificant portion of the KCO community ............................................15(a)

The position of the Objector........................................................ 15(b)

The position of the Applicant ...................................................... 17(c)

Determination of the Expert ....................................................... 18

IV. CONCLUSION ............................................................................................................ 22
V. DECISION ................................................................................................................ 222

This Expert Determination is rendered in the dispute settlement proceedings arising fromthe community objection to the application for the “.kosher” general top level domain(gTLD) within the framework of the ICANN gTLD Application Process governed by the ICANNgTLD Applicant Guidebook, version 2012-06-04 (the “AGB”).
I.

INTRODUCTION

1.

The community objection to the application for the “.kosher” gTLD dated March 13,
2013 (the “Objection”), which is at the origin of these proceedings, was filed by theUnion of Orthodox Jewish Congregations of America (OU Kosher), 11 Broadway,
New York, NY 10004, USA, (the “Objector”). The Objector is represented in theseproceedings by Mr. David E. Weslow, Wiley Rein LLP, 1776 K Street NW, Washington,
DC 20006, dweslow@wileyrein.com.

2.

The Objection is supported by1: (i) Star-K Kosher Certification, Inc, 122 Slade Ave,
Suite 300, Baltimore, MD 21208, USA; (ii) Chicago Rabbinical Council, Inc., 2701 W.
Howard St, Chicago IL 60645, USA; (iii) Kosher Supervision Service, Inc. (Kof-K), 201
The Plaza, Teaneck, NJ 07666, USA; (iv) The Kashruth Council of Canada (COR), 3200
Dufferin Street, Suite 308, Toronto, Ontario, M6B 2C1, Canada; (v) Kehilla Kosher Los
Angeles, 345 North La Brea Avenue, Ste 204, Los Angeles, CA 90036, USA; (vi)
Orthodox Rabbinical Board of Broward and Palm Beach Counties, PO Box 640326,
Miami Fl 33164-0326, USA; (vii) Kosher Miami, Vaad HaKashrus of Miami Dade, PO
Box 403225, Miami, FL 33140-1225, USA; (viii) Rabbinical Council of California, 3780
Wilshire Blvd# 420, Los Angeles, CA 90010, USA; (ix) Orthodox Vaad Ha Kashrus of
the Ashkenazi Kehila in Mexico, #70, 6th Floor, Col Roma Norte, Mexico City 06700,
Mexico; (x) The Rabbinical Court of Moscow Kashruth Department, Big
Spasoglinitshevsky per. 10, Moscow 101000, Russia; (xi) London Beth Din Kashruth
Division, 305 Ballards Lane, London N12 8GB, United Kingdom (collectively the“Supporters of the Objection”).

3.

The application for the “.kosher” gTLD (the “Application”) was filed by Kosher
Marketing Assets LLC, 391 Troy Avenue, Brooklyn, NY 11213, NY, USA (the“Applicant”). The Applicant is represented in these proceedings by Mr. Brian J.
Winterfeldt, Katten Muchin Rosenman LLP, 2900 K Street NW, North Tower, Suite
200,
Washington,
DC
20007-5118,
brian.winterfeldt@kattenlaw.com,
newgtld@kattenlaw.com. The Applicant filed its Response to the Objection (the“Response”) on May 13, 2013.

4.

On June 4, 2013 the Chair of the Standing Committee of the International Centre forExpertise of the International Chamber of Commerce (the “Centre”) appointed assole member of the Panel of Experts Professor Luca G. Radicati di Brozolo, Arblit Radicati di Brozolo Sabatini, 15 Via Alberto da Giussano, 20145 Milan, Italy,
Luca.Radicati@arblit.com (the “Expert”), who submitted his declaration of
acceptance and availability and statement of impartiality and independence on thefollowing day.

1

See Objection, p. 8.

3

5.

The file of the case was transmitted by the Centre to the Expert on July 5, 2013.

6.

These proceedings are administered by the Centre pursuant to Article 3(d) of the
New gTLD Dispute Resolution Procedure (the “Procedure”),2 which is applicable byvirtue of its Article 1(d).

7.

These proceedings are governed, as to matters of procedure, by the Procedure andby the Rules for Expertise of the International Chamber of Commerce, as
supplemented by the ICC Practice Note on the Administration of Cases under the
Attachment to Module 3 of the gTLD Applicant Guidebook, New gTLD Dispute
Resolution Procedure of the gTLD Applicant Guidebook (Article 4(a) and 4(b)(iv) of
the Procedure).

8.

As dictated by Article 20 of the Procedure, the merits of the dispute before theExpert are to be decided by reference to the relevant standards defined by ICANN,
in particular in Section 3.5.4 of the objection procedures in Module 3 of the AGB (the“Objection Procedures”), as well as to any rules and principles that the Expert
determines to be applicable, having due regard to the statements and documents
submitted by the Parties. The burden of proof that the Objection should besustained rests with the Objector in accordance with the applicable standards.

9.

Following an exchange of correspondence with the Objector and the Applicant(collectively the “Parties”), the Expert issued the Expert Mission on August 1, 2013.

10.

Pursuant to Article 5(a) of the Procedure, the language of all submissions andproceedings was English. Moreover, in accordance with Article 6(a) of theProcedure, all communications by the Parties, the Expert and the Centre were
submitted electronically.

11.

In conformity with the procedural timetable fixed in the Expert Mission, the Objector
filed its supplemental pleading on August 13, 2013 (“Supplemental Pleading”) andthe Applicant filed its response on August 27, 2013 (“Response to the Supplemental
Pleading”).

12.

On September 2, 2013 the Expert requested the Applicant to provide twoclarifications and granted the Objector the opportunity to reply. The Applicant’s
clarifications were submitted on September 4, 2013 and the Objector’s reply on
September 9, 2013, according to the timetable agreed with the Parties.

13.

In accordance with Article 19(a) of the Procedure, and in the absence of any request
by the Parties, no oral hearing was held.

14.

Article 21(a) of the Procedure provides that the Centre and the Expert shall makereasonable efforts to ensure that the Expert renders his decision within 45 days of
the “constitution of the Panel”. The Centre considers that the Panel is constituted
when the Expert is appointed, the Parties have paid their respective advances on
costs in full and the file is transmitted to the Expert. In this case, the Panel was

2

Attachment to Module 3 of the AGB.

4

constituted on 5 July 2013. The Centre and the Expert were accordingly to makereasonable efforts to ensure that his determination was rendered no later than 19
August 2013 (as calculated in accordance with Articles 6(e) and 6(f) of theProcedure).
15.

II.
16.

Pursuant to Article 21(b) of the Procedure, the Expert submitted a draft of his
Determination to the Centre for scrutiny as to form prior to its signature.
THE OBJECTOR’S STANDING
In accordance with Section 3.2.2 of the Objection Procedures and Article 8(a)(ii) of
the Procedure the Expert must first satisfy himself that the Objector has standing to
object to the “.kosher” gTLD string. As provided in Section 3.2.2.4 of the Objection
Procedures, for these purposes he must satisfy himself that the Objector(i)

is an established institution; and(ii)

has an ongoing relationship with a clearly delineated community.

17.

Both Parties have addressed the requirements for standing in two rounds of written
submissions.

(a)

The Position of the Objector

18.

The Objector claims to be “the oldest and largest kosher certification organizationof the world” which traces its roots to 1924. As of February 2013 it certified over
270,000 consumer products and over 430,000 industrial products, and its
certification mark has achieved global recognition.

19.

In support of its contention that it has an on-going relationship with “the clearly
established community of kosher certification agencies” the Objector avers that it is“a leading member of the worldwide community of kosher certification
organizations”, i.e. the “organizations [that] provide supervision and certification to
help consumers identify products that meet the dietary requirements of Jewish Law”.
It adds that it maintains offices in New York, Los Angeles, Jerusalem and Beijing andcertifies kosher facilities in 101 countries and that its standards “are accepted in thewidest range of Orthodox Jewish communities”. The Objector is regularly consulted
by other organizations for assistance in the development of policies modeled after
those of the Objector and consumers frequently turn to it for guidance in compliancewith Jewish dietary laws. The Objector is also a member of the eighty-member
Association of Kashrus Organizations (“AKO”).

20.

In its Supplemental Pleading the Objector portrays itself as “an organization thatworks for the benefit of the Community”, adding that “because kosher certificationis communal rather than authoritative, kosher certification organizations rely oneach other in fulfilment of their duties to the broader community of kosher
manufacturers and consumers”. It concludes that “the Community derives
substantial benefit from its ongoing relationship with [the Objector]”.

5

(b)

The position of the Applicant

21.

The Applicant does not dispute the Objector’s claim to be the oldest and largest
kosher certification organization (“KCO”) in the world.

22.

It states that the Objector fails to discuss an ongoing relationship with a clearlydelineated community, merely submitting that it has such a relationship with “anestablished community”, and thereby apparently equating “established” with“delineated”, notwithstanding that the terms are not equal and do not have thesame meaning in the AGB. It then contests that the ongoing relationship between
the Objector and the community of KCO is “for the benefit” of the community itself,
since the other members of the community are not the Objector’s beneficiaries but
its commercial competitors. The Objector’s activities benefit itself and its clients
rather than other KCOs and the wider kosher industry. It then posits that thecommunity of KCOs and the wider kosher community lack formal boundaries, since
anyone can claim to be a KCO and, even under Jewish law, different certifiers follow
different rules.

23.

In its Response to the Supplemental Pleading, the Applicant adds that the Objector
has no mechanisms for participation in or establishing and sustaining a relationshipwith other KCOs.

(c)

Determination of the Expert

24.

There is no dispute between the Parties that the Objector is “an establishedinstitution” and thereby satisfies the first requirement for standing.

25.

As to the requirement of an “ongoing relationship with a clearly delineatedcommunity”, the Applicant’s arguments turn essentially on whether the community
to which the Objector claims to be associated, i.e. the community of KCOs, is clearlydelineated and on whether the relationship between the Objector and that
community is for the benefit of the latter.

26.

On the issue of the clear delineation of the community, the Applicant’s arguments
do not differ fundamentally from those developed to contest the satisfaction of thefirst substantive standard for community objections, which turns on the existenceof a clearly delineated community (Section 3.5.4 of the Objection Procedures). For
the reasons set out in detail in Section III.A(c) below, the Expert is satisfied that thecommunity of KCO’s on whose behalf the Objection is filed satisfies the criteria tobe considered clearly delineated.

27.

As to whether the relationship between the Objector and the invoked community of
KCOs is for the benefit of the latter, there is merit in the Objector’s argument that,
due to the communal nature of kosher certification, KCOs rely on each other, andthat therefore other KCOs draw some benefit from the Objector’s activities. The factthat other KCO’s are competitors of the Objector does not necessarily detract from
that.

28.

In any event, the two factors that relate to the “benefit of the associated community”

6(the “institutional purpose” and the “regular activities”) are only two of the ones tobe taken into consideration for a finding of standing mentioned in Section 3.2.2.4 of
the Objection Procedures. As discussed below (§ 43), the Expert is satisfied as to thesatisfaction of the fourth factor, the one relating to the existence of formalboundaries around the invoked community.
29.

Moreover, from Section 3.2.2.4 of the Objection Procedures it is clear that the
judgment as to the existence of an ongoing relationship can be the result of an
overall balancing of a variety of factors. In the Expert’s opinion, the fact that the
Objector is a leading member of the worldwide community of KCOs, that it maintains
offices in a large number of countries and that it is regularly consulted by other KCOs
for assistance in the development of policies and by consumers for guidance on
Jewish dietary laws is a significant factor in determining the Objector’s relationshipwith the community. These elements, which are alleged by the Objector, are notcontested by the Applicant.

30.

In light of these considerations the Expert is satisfied that the Objector meets thestanding requirements in conformity with Section 3.2.2.4 of the Objection
Procedures and is therefore eligible to file the Objection.

III.

THE MERITS OF THE OBJECTION

31.

In accordance with Section 3.5.4. of the Objection Procedures, the Objection can besustained if the Expert ascertains the existence of substantial opposition from asignificant portion of the community to which the string may be targeted. For ashowing of such opposition the Objector must prove that:

32.

33.

(i)

the community invoked by the Objector is clearly delineated;(ii)

there is substantial community opposition to the Application;(iii)

there is a strong association between the community invoked by the
Objector and the “.kosher” gTLD string;(iv)

the Application creates a likelihood of material detriment to the rights orlegitimate interests of a significant portion of the community to which the“.kosher” string may be explicitly or implicitly targeted.

The Parties have amply debated each of these criteria in their written submissions.
III.A

Whether the community invoked by the Objector is clearly delineated(a)

The position of the Objector

The Objector posits that for over a century KCOs have played an essential role in
Jewish life by providing a basis upon which consumers can easily determine whether
food and related products adhere to kashrut requirements. When a respectable
KCO, such as the Objector, places its seal on a product, it signals to the kosher
consumer that the product adheres to the highest standard of Jewish law. The

7

community of KCOs began in earnest when the Objector entered the field of kashrut
in 1924. Due to the increased complexity of manufacturing processes and thegrowing demand for kosher certification the number of KCOs has increased verysignificantly, reaching more than 1,100 today, spread out in many different
countries. Amongst these a key role is played by a “Big Five” group of generally
recognized KCOs, which certify approximately 75% of kosher ingredients worldwide.
The AKO serves as an umbrella organization for KCOs worldwide.
34.

The Objector considers that its position on the existence of a community of KCOs is
confirmed by the Application, which describes the mission and purpose of the“.kosher” gTLD string as, inter alia, “to promote food certification in general”, statingthat “the .kosher TLD and all the domains under it will be used to provide reliable
information about Kosher certification, as an industry and as concerns Kosher
certified products” and “.kosher TLD aspires to become the premiere reliable sourceof information on the internet about everything to do about Kosher certification”.
The Objector draws further support from an amicus curiae brief filed, inter alia, by
the Applicant in an action before US courts, wherein it was asserted that the courts
were ill-equipped to determine whether a product is 100% kosher and that suchdeterminations can be made only by Jewish religious authorities.3 According to the
Objector, further admissions regarding the existence of a clearly delineated KCO
community comes from the statement in the Applicant’s website that, when an
organization or an individual puts a kosher certification on a product, they attest
that the contents and manufacturing meet their kashrut standards. Finally the
Objector notes that the kosher certification community is the focus of several
publications and newsletters, one of which has a distribution of more than 80,000
copies and some of which serve as industry monitors.

35.

In its Supplemental Pleading the Objector underlines the observation of ICANN’s
Independent Objector that “the notion of ‘community’ is wide and broad, and is not
perfectly defined”4 and stresses again that the existence of a clearly delineated KCO
community has been recognized by the Applicant. It adds that the Applicant’s
definition of community is excessively limited, since the level of “formal boundaries”
is only one of the relevant factors. It refers to the Independent Objector’s position
that a community can include a “community of interests, as well as a particularethnical, religious, linguistic or similar community” and that “a community can be
defined as a group of individuals who have something in common [...] or sharecommon values, interests or goals”. The kosher community is unique in that it isdefined by the community itself. Finally the Objector contests the relevance of the
Independent Objector’s lack of objection to the application for the “.Catholic” stringin particular because, unlike the Catholic Church, “kosher is decentralized and3

See Brief of Amicus Curiae in support of Defendant, Wallace v. ConAgra Foods, Inc., No. 12cv-01354 (D. Minn.) (Objector’s Annex D to the Objection).

4

See Prof. Alain Pellet, Independent Objector, The Issue of “Closed Generic” gTLDs,
http://www.independent-objector-newgtlds.org/english-version/the-issue-of-closedgeneric-gtlds/ (Objector’s Annex B to the Supplemental Pleading).

8

governed by a community”.5 The existence of other potential communities
associated with kosher does not detract from the separate, delineated communityof KCOs.
(b)

The position of the Applicant

36.

The Applicant contests the characterization of the KCO community as clearlydelineated on several grounds. First there is no internal awareness or recognition as
a community, since there is uncertainty within KCOs and the “greater kosher
community” about what persons or entities are included in either community. Thereis no exhaustive or authoritative list of KCOs, and anyone can claim to be a certifier,due to the absence of any accreditation or common standards. Second, there is also
no public recognition as a community on the part of consumers. Third, thecommunity lacks a formal boundary, which the Applicant equates with “an officiallyrecognized limitation on membership that defines with certainty what persons or
entities are part of the community”. In the case at hand the criteria as to who can beconsidered a KCO are uncertain. Fourth, the alleged community’s age anddistribution are unquantifiable. Fifth, the alleged community is not clearlydelineated due to a diversity of goals, values and interests. The Applicant refers to
the Independent Objector’s position that generic strings would not meet the clearlydelineated criteria due to the broad definition of community in the AGB, because
they are used by people who do not necessarily share the same goals, values andinterests, and to its finding that the “.Catholic” gTLD does not refer to a clearlydelineated community.6 If clear delineation is impossible for the Catholic Church,which is centralized, a fortiori it is impossible for KCOs which relate to adecentralized religion with widely varying definitions, membership and procedures.
The Applicant disputes that the Application is evidence of the invoked community,
since it includes food manufacturers, whom the Objector does not consider part of
the KCO community. The kosher community includes service providers, such as
restaurants, caterers, hotels and trucking companies.

37.

In the Response to the Supplemental Pleading, the Applicant insists that any
purported kosher community is much broader than KCOs. The lack of common
certification standards and procedures entails disagreement about the legitimacy ofmembership of the community, which in turn is fatal to clear delineation of thecommunity.
(c)

38.

Determination of the Expert

The Expert recalls that, in accordance with Section 3.5.4 of the Objection
Procedures, the factors that can be balanced to determine whether the invoked5

See Prof. Alain Pellet, Independent Objector, “.CATHOLIC” – General Comment,
http://www.independent-objector-newgtlds.org/english-version/the-independentobjector-s-comments-on-controversial-applications/catholic-general-comment/(Objector’s Annex C to the Supplemental Pleading).

6

See supra, footnote 5.

9community is clearly delineated include, but are not limited to, (i) the level of thecommunity’s public recognition, (ii) the level of formal boundaries around it andwhat persons or entities are considered to form it, (iii) the length of time it has been
in existence, (iv) its global distribution and (v) the number of people or entities thatmake it up.
39.

In the case at hand the community invoked by the Objector, i.e. the one that the
Objector “has identified itself as representing” (in the words of Objection
Procedures), is the community of KCOs.

40.

The Expert does not accept the Objector’s argument that the Application itself andthe amicus curiae brief filed by “several major kashrut supervision agencies”,
including the Applicant, in proceedings before the US courts7 constitute an
acknowledgement of the existence of a KCO community. Those documents merely
confirm the importance of certification and the pre-eminence of KCOs over courts
in determining when a product can be defined as kosher.

41.

Other elements cited by the Objector are, instead, relevant. Particularly importantis the undisputed fact that KCOs have existed since at least almost a century and thatthey play a very significant role in what the Applicant refers to as the “greater kosher
community”, because they perform the fundamental function of certifying what
products comply with the strict requirements of Jewish law. Their role and authority
are recognized by all those who seek to follow the dictates of kosher. It is equally
not disputed that today there are over one thousand KCOs that operate in a wide
range of countries.

42.

It is true that there is no official roster of KCOs or “officially recognized limitation on
membership” of the community at stake, since anybody can engage in kosher
certification, and the exact number and identity of all the KCOs in existence andoperating at any one moment is impossible to certify.

43.

These factors are not of themselves sufficient to deny the existence of a community
or its clear delineation. The community of KCOs is made up only of KCOs, and these
entities can be identified as such. This is sufficient to conclude that there aresufficient formal boundaries around the community. The fact that anybody can
engage in kosher certification is not a bar to the identification of the members of thecommunity, in particular considering that it is not necessary that the identity of
every single member of a given community be known. There is no requirement thatthe existence of the community or the identity of the individual members becertified through any type of formality.

44.

Also the fact that different KCOs follow different certification standards is notconclusive. It does not entail that, considered overall, KCOs do not share common
values, interests and goals, which are those of providing certification according to
the standards of kosher in the interests of the broader community of those who seek
to abide by kosher rules.

7

See supra, footnote 3.

10

45.

The Expert is also not persuaded of the relevance of the consideration that there
may be other communities with an interest in the term “kosher” and that the kosher
community includes other categories of individuals and entities besides KCOs. The
existence of a community, and its clear delineation, is not precluded by the existenceof other communities to which a given string may be targeted. From the Objection
Procedures (in particular at 3-22 and 3-23) it is clear that there need not be acoincidence between the community to which the string is targeted by the applicant
and the one on behalf of which an objector can purport to express opposition. In any
event, even if the KCO community were characterized as a sub-community of abroader community of all those with stake in kosher, it would unquestionably
remain an important part of the overall community.

46.

The refusal of the Independent Objector to object to the “.Catholic” string is not
pertinent.8 In that case, the Independent Objector found that the public commentson the ICANN website did not tend to prove the existence of a delineated communityand did not necessarily pretend to express an opinion in the name of such a
community. In the present case the Expert considers that the arguments advancedby the Objector do indicate the existence of a clearly delineated community andthere is no doubt that the Objector claims to express the opinion of the community.

47.

All these elements support the conclusion that the community of KCOs invoked by
the Objector enjoys a certain level of public recognition and encompasses a
significant number of entities and can be distinguished from other communities by
its characteristics and specificities.

48.

More specifically, based on the evidence, the Expert considers that the communityof KCOs enjoys a significant level of public recognition, is characterized by formalboundaries in the sense that it is possible to identify the entities that form part of it,
has been in existence since a considerable amount of time, is distributed in many
parts of the world and is composed of over one thousand entities.

49.

The Expert is therefore satisfied that the community of KCOs, in the name of which
the Objection was filed, is clearly delineated.

50.

8

III.B

Whether there is substantial community opposition to the Application(a)

The position of the Objector

In positing that opposition to the Application is substantial within the invokedcommunity the Objector points to the “sheer number of expressions of opposition”,
and in particular to the declarations of opposition from eleven leading KCOs
attached to its Objection. All these opposing organizations express concern that the
global kosher community is likely to suffer serious detriment from themonopolization of the “.kosher” string by a single KCO for its own benefit. The
entities expressing opposition to the Application include “some of the largest and

See supra, footnote 5.

11most influential kosher certification organizations in the world”. Finally, since nosingle entity controls the right to the term kosher, there are few other channels
through which the Objection could have been conveyed.
51.

The Supplemental Pleading argues that the Applicant uses quantity over quality andthat the “substantial” nature of the opposition, which is what is required by the AGB,
cannot be denied. The supporters of the Application do not have the Objector’s andthe Supporters of the Objection’s “size or clout within the community” and some are
not even impartial. The fact that the Applicant is a respected KCO does not meanthat the issuance of “.kosher” domains should be exclusively and subjectively
determined by a single KCO to the detriment of the community.
(b)

The position of the Applicant

52.

According to the Applicant, the Objection is supported by less than 1% of the
purported community, of which the entities expressing opposition are
unrepresentative. In particular, the Objector and the Supporters of the Objection
represent only certification of kosher ingredients and food products, leaving out
many other essential sectors, including restaurants, caterers, bakeries etc.
Moreover, the parties to this dispute are of equal weight and stature. The opposition
comes from large commercial entities and “an unrepresentative sample of regional
certification organizations”, whilst the Applicant’s support comes from 21 countries.
Also, the Applicant has passed over a significant opportunity to defend KCOs. Finally,
unlike the Applicant that has borne significant costs for the Application, the Objector
rejected the Applicant’s offer of joint control of the “.kosher” string “citing fiscal
reservations”. The Objector’s true reason for the opposition is that “ideally .kosher
would not exist”, which is of itself a reason for dismissal of the Objection since it isbased on obstruction, in contrast to the principle laid down in Section 4.2.3 of the
AGB (at 4-19).

53.

The Response to the Supplemental Pleading notes that the Objector relies on the“sheer number” of ingredients purportedly certified by the opponents of the
Application and that the numbers are based on “dubious statistics”. In any event,the number of certified products is a measure of work product, which is not an AGB
factor. For the Applicant there is no evidence of world-wide opposition, theopposition is limited to “a handful of ‘heavyweight’ class entities” and “[a] divided
community is not substantial opposition”. It also alleges intimidation by the
Objector.
(c)

54.

Determination of the Expert

According to the Objection Procedures (Section 3.5.4) the factors that can bebalanced to establish substantial opposition to the application within thecommunity purported to be represented by an objector include (i) the number of
expressions of opposition relative to the composition of the community, (ii) the
representative nature of the entities expressing opposition, (iii) their stature andweight, (iv) their distribution or diversity, (v) their historical defense of thecommunity in other contexts and (vi) the costs incurred by the objector to convey

12

opposition.
55.

The Objection is submitted by an entity that is generally recognized as the “oldest
and largest” KCO in the world and is supported by a significant number of other wellestablished KCOs, including four of the “Big Five” KCOs that are alleged to certify
approximately 63% of kosher ingredients worldwide, and leading entities in several
major countries. The fact that the number of KCOs objecting to the Application(twelve) is fairly small in absolute terms would not of itself be a bar to considering
their opposition substantial. Although the AGB refers to the “number of expressionsof opposition”, in the Expert’s opinion this does not prevent him from also weighing
the expressions of opposition to the Application.

56.

Given their recognized stature and weight within the KCO community, the Objector
and the Supporters of the Objection can also be held to be sufficiently representativeof a significant portion of that community. The fact that the Applicant has equivalentstature within the community does not detract from the fact that the Objectors’
opposition can be substantial. In the opinion of the Expert, “substantial” does notnecessarily mean “overwhelming” or require that the opposition be the expressionof the majority of the community. The objecting entities’ leading roles and weight
within the community in a variety of countries could be sufficient for a finding that
also the fourth factor listed in the AGB (the one relating the distribution or diversity
amongst the sources of opposition) is satisfied.

57.

As pointed out by the Applicant, the Objector has provided no evidence as to thesatisfaction of the two remaining factors, i.e. the historical defense of thecommunity in other contexts and the costs incurred by the objector in expressing
opposition. This does not necessarily entail a finding that opposition is notsubstantial, since the factors listed in Section 3.5.4. of the Objection Procedures are
only examples of those that can be considered by the Expert, who has discretion in
deciding whether the individual criteria are satisfied.

58.

Nonetheless, in this case not only has the Objector not provided any evidence on
the last two factors listed in the Objection Procedures as indicating substantial
opposition. Also for some of the other factors discussed above it could be doubted
that the required standard of proof has been satisfied in full. One could therefore
hesitate to conclude that, considering the relevant standards individually orcollectively, there is strong and unequivocal evidence of substantial opposition to
the Application within the community. The Objector has not put forth otherelements that the Expert would be permitted to consider in this context and that
could buttress the Objector’s case.

59.

In light of the Expert’s conclusion in relation to the fourth factor required for acommunity objection to be successful (Section III.D(c) below), it is in any event notnecessary to reach a final conclusion on the substantial opposition criterion.

13

III.C

Whether there is a strong association between the KCO community andthe “.kosher” gTLD string(a)The position of the Objector

60.

For the Objector the association between “.kosher” and the KCO community isevidenced by the string’s declared mission to “promote Kosher food certification in
general and OK Kosher certification and its clients in particular”. This demonstrates
the existence of a kosher certification community and the intertwining of theconcepts of kosher and certified products. Further unequivocal acknowledgementof the strong association between the string and the KCO community comes fromthe statement in the Application that “.kosher TLD aspires to become the premiere
reliable source of information on the internet about everything to do with Kosher
certification”. On the other hand, the Application, shows no particular association
between the Applicant and the string that would justify its exclusive dominion overthe string. The strong association between kosher and the KCO community extends
beyond orthodox Jews. The need for certification for foods to be considered kosher
appears clearly from internet searches.

61.

The Supplemental Pleading criticizes the Applicant’s reliance on the possible
association of other communities with the term kosher on the ground that the AGB
does not require that the objecting community’s association with the applied-for
string be exclusive.
(b)

The position of the Applicant

62.

The Applicant argues that KCOs are a subset of the individuals and entities targetedby the Application and understood to be associated with kosher, which are intended
to include manufacturers, distributors, service providers, sellers and consumers ofkosher food. The Applicant contends that the association between kosher and KCOs
is no stronger that that between art appraisers and the word art. Kosher is defined,even by the Objector, as meeting Jewish standards, regardless of certification. KCOs
are only part of a broader industry of entities and individuals that use the word
kosher. Any association between kosher and the alleged community is ancillary to
the much stronger one with the greater community. The fact that the Application’s
purpose is to provide information on everything to do with kosher certification is notevidence of a strong association, whilst the lack of a special connection between the
Applicant and kosher is irrelevant, since no such connection is required by the AGB.
Consumers do not associate kosher with anything other than food products andcertainly not exclusively with KCOs.

63.

In the Response to the Supplemental Pleading, the Applicant labels as “misleading”
the suggestion that there can be no practice of kosher law without certifying
organizations and reiterates the weakness of the association between KCOs andkosher, “whereas a strong association actually exists between the string and the
producers and consumers of kosher food”.

14

(c)

Determination of the Expert

64.

Under Section 3.5.4 of the Objection Procedures, the factors that can be taken into
consideration to determine whether there is a strong association between “.kosher”
and the KCO community represented by the Objector include (i) the statements
contained in the Application, (ii) other public statements by the Applicant and (iii)associations by the public.

65.

As noted by the Objector, the association between the “.kosher” string and kosher
certification is unequivocally pointed to by the Applicant itself. The Application(para. 18(a)) describes “[t]he mission” of the string as “to promote kosher foodcertification”. In para. 18(b)(i) it adds that the domains will be used to provide
information about “Kosher certification”, in para. 18(b)(ii) that the string “willspecialize in Kosher Certification”, in para. 18(b)(iii) that it “aspires to become thepremiere reliable source of information on the Internet about everything to do with
Kosher certification” and in para. 18(b)(iv) that that the domain will be madeavailable only to companies that intend to use it “to promote Kosher certification”.
This in itself is a powerful indication of the link between the string and the KCO
community.

66.

The link between the string and kosher certification is in any case almost inherent.
It is true that kosher food does not require a specialized organization, as remarked
by the Applicant. It is equally true, however, that KCOs play a predominant role indetermining what is kosher, and that this role is recognized and relied upon by thegreat majority of those who use kosher products.

67.

The fact, to which the Applicant points, that the term kosher can be associated to abroader group that KCOs, or even that the Applicant intends to “target” such a
broader group, does not demonstrate a lack of a relationship with the community inquestion. The Expert agrees with the Objector that nothing in the Objection
Procedures requires that the community represented by the Objector be the only
one having a “strong association” with the applied for string.

68.

The Expert is therefore of the opinion that the criterion of strong association issatisfied, in that there is a strong association between the “.kosher” string and thecommunity of KCOs.
III.D

Whether the Application creates a likelihood of material detriment to asignificant portion of the KCO community

(a)
69.

The position of the Objector

The Objector submits that, were the Application granted, there would be a
substantial confusion as to the certification of food products. Consumers understandthat there is no central organization responsible for certifying items as kosher. The
Application would damage the community-oriented nature of kosher certification,and thereby the individual entities that compose the KCO community. The
Application makes it apparent that the “.kosher” domain is intended to be operated15

in a manner that is not in the interests of that community, since the Applicant
intends to “promote […] OK Kosher Certification and its clients in particular”. The
closed nature of the registry indicates that the Application would not promotekosher food certification in general and that only KMA and OK Kosher would be able
to declare a food manufacturer kosher. This would preclude the use of the “.kosher”
domain by companies that meet the rigorous standards of Jewish law simply
because they are not “personally visited and inspected” by the Applicant. The
restrictive use of “.kosher” would interfere with the core activity of the communityof KCOs, which is providing guidance to kosher consumers. By proposing to operate
the “.kosher” gTLD as a closed registry, the Application would run counter to the
expectation of consumers that the domain would be a central repository for
information about kosher needs. The granting of the Application would “usurp thecommunal word ‘kosher’, such that it will become exclusively associated with KMA
and OK Kosher in the minds of food manufacturers and consumers”. Moreover, “theconcept of a single entity determining what is kosher is antithetical to the community
nature of kosher certification”.
70.

The Supplemental Pleading argues that upholding the Application would entail that“consumers will come to rely on .kosher as a trusted indicator of kashrut and willassociate a <brand name>.kosher domain as indicative of a product’s status ”. This
would cause confusion as to the basis for determining what brands receive “.kosher”
domain names and whether a brand without such a domain name is actually kosher,
as well as competitive harm because a single privately-owned organization would
have authority to determine who receives a “.kosher” domain name. The Applicant’s
argument that it would not be the sole centralized source for kosher certification iscontradicted by the Application’s statements that the gTLD “aspires to become thepremiere reliable source of information on the internet about everything to do with
Kosher certification” and that the gTLD at issue “will only be available to companies
that have been personally visited, inspected and are known to be using the domain
to promote Kosher Certification”. Regardless of the Applicant’s stated intentions as
to how it will act in attributing “.kosher” domain names, the Applicant’s “monopoly
status” over such domain names would allow it to engage in “exclusionary practices”
to the detriment of the community. The Objector points to the concerns raised by
ICANN’s Governmental Advisory Committee (“GAC”) regarding the application for“.halal”, which are equally applicable to “.kosher”.9 Finally, it argues that the
recently amended Specification 11 (“Specification 11”) of the draft Registry
Agreement between registry operators and ICANN (the “RA”) would not limit the
Applicant’s ability to apply its own subjective standards to exclude the Objector andits clients or to contradict the Objector’s certification standards, so long as it did so
openly and equally.

71.

In the Supplemental Pleading the Objector pleads that the Applicant cannot “escape
the actual language of its Application” and failed to respond to the Expert’s inquiry
into who will “personally” visit the registrants of the domains. Allowing the language

9

See ICANN Governmental Advisory Committee, Beijing GAC Communiqué issued on April 11,
2013 (Objector’s Annex M to the Supplemental Pleading).

16

of the Application to be supplanted by arguments in an adversarial proceeding
would render moot the ICANN objection process. The Application’s ills are not curedby Specification 11, Article 2 of which does not permit the incorporation into the RA
of counsel’s statements in these proceedings, in particular the one about who willvisit prospective registrants. Furthermore, the Applicant does not address how the“inspection” and “known to be using” criteria may be satisfied by third parties. It will
“maintain authority to determine all standards for ‘visitation, inspection andcertification’” and will “maintain complete discretion” as to the standards it will
apply. The Applicant’s clarification contradicts its expressed mission to use “.kosher”
to promote its certification and clients. In any event, Specification 11 could notcurtail the Applicant’s ability to operate “.kosher” in a manner that will cause
detriment. Notably, Article 3(c) and (d) of Specification 11 impose no meaningful
restrictions on how the Applicant can operate “.kosher”, and in particular would notprevent it from subjectively determining registrant eligibility criteria and, ultimately,
unilaterally controlling access to the “.kosher” registry.
(b)
72.

The position of the Applicant

The Applicant contests that the Application can entail any consumer confusion
because there is no evidence that it will change consumer understanding of thedecentralized nature of certification or prevent individual KCOs from carrying out
their mission. The “.kosher” gTDL will actually supplement the existing sources ofkosher information, and serve as a reliable source with additional authority for the
benefit of consumers, manufacturers and diverse other parties. It is not meant toprovide certification services. Even if it were used in that way, it would not prevent
other certifiers from existing and flourishing. There is also no indication that the
Applicant will not act in accordance with the interests of KCOs, consumers and otherusers. Furthermore, the gTLD will not be closed and will not interfere with the core
activities of KCOs. The eligibility requirement is not limited to verification by the
Applicant, which has a long history of inclusive online practices and will continue topromote kosher certification and encourage demand by including those who certify,
manufacture and sell kosher food, to the benefit of all industry players. Such
restrictions as the Applicant proposes to apply in the registration of “.kosher”
domain names are necessary to provide user confidence that the information
provided on the domains is about legitimate and verified products andestablishments. There is also no basis for the assertion that the Objector would beprecluded from a “.kosher” domain registration, since it would “obviously” beallowed to register such a domain. In any event, the Objector does not explain how
such preclusion would interfere with the Objector’s activity. The allegation isfurthermore irrelevant, given that “allegations of detriment” based solely on theapplicant being delegated the string instead of the objector are barred by the AGB(Section 3.5.4 at 3-24). Finally, the claim that the Application would lead tousurpation of the “.kosher” gTLD is unsupported, particularly in the light of thestatement of members of ICANN’s Noncommercial Stakeholders’ Group position
that a TLD cannot impart ownership to a registry operator over the generic word
represented by the string. The Objector has “ulterior motives”, in that, as explicitly
declared by it, its interest is that there should be no “.kosher” gTLD at all, as

17

demonstrated by its refusal to accept the Applicant’s good faith proposals to address
its concerns.
73.

The Response to the Supplemental Pleading contests the claim that consumers will
rely exclusively on the “.kosher” string for kosher status, thereby incurring in
confusion. It reiterates that the Applicant’s original intention was to sublicense
domain names to certified second level registrants and to develop close affiliations
with other KCOs and that it never intended exclusive control of the TLD. To alleviate
any concern, the Applicant also declared its readiness to execute a public interest
commitment at no cost, thereby further binding it in a manner enforceable by ICANN
and third parties. Additionally, the Applicant offered the Objector an equal
partnership in operating the TLD, subject to a sharing of costs. It notes that its RA iscontractually binding, such that any unfairly exclusive operation by the Applicant
would entail a breach thereof. Any claims by allegedly harmed parties would be
subject to the Public Interest Commitment Dispute Resolution Policy (“PICDRP”)
provided for at Article 2 of Specification 11. The Applicant’s failure to file acommunity-based application under Section 1.2.3. of the AGB is not evidence that it
will operate the “.kosher” domain to the detriment of the community. The
Application is in no way closed and does not allow for exclusive control of thedomain, particularly because the Applicant will be subject to Specification 11
requiring registry operators to abide by fair and transparent registration and nondiscriminatory policies. The Applicant concludes that it would have no choice as towhether to accept Specification 11.

74.

In reply to the Expert’s request for clarifications the Applicant confirmed that theverification of the eligibility requirements for registration of the domains will not belimited to the Applicant, and that “[a] prospective registrant’s own kosher
certification organization will be responsible for personally visiting companies
seeking to register a domain name”. It also clarified the statement in the Application
about the intended limits to the registration of domains. It explained that thereference to “affiliates” was not intended in the strict legal sense of “entities undercommon control” and that in any event its initial intentions were superseded by the
recent guidance from the ICANN Board requiring compliance with Specification 11,“which entirely obviates Objector’s concerns”. It added that “there is no questionthat [the Applicant] would be subject to the obligations […] under Specification 11”.
(c)

75.

Determination of the Expert

Section 3.5.4 of the AGB lists the following factors that can be taken into account toassess whether an application is likely to create material detriment to the rights andlegitimate interests of a significant proportion of the community: (i) the nature andextent of the damage to the community’s reputation; (ii) evidence that the applicant
does not act, or intend to act, in accordance with the interests of the community;(iii) interference with core activities of the community; (iv) dependence of thecommunity represented by the objector on the DNS for its core activities; (v) natureand extent of the concrete or economic damage to the community and (vi) level ofcertainty of alleged detrimental outcomes.

18

76.

The AGB specifies in Section 3.5.4 that “[a]n allegation of detriment that consists
only of the applicant being delegated the string instead of the objector will not be
sufficient for a filing of material detriment.”

77.

The Objector has not explained how the operation of the “.kosher” domain by the
Applicant would damage the community-oriented nature of kosher certification.
There is no evidence that only the Applicant would be able to declare a food
manufacturer kosher, thereby excluding other KCOs from this activity. Likewise,
there is no persuasive evidence that the operation of the TLD by the Applicant would
lead to significant confusion in consumers or others with a stake in kosher. Equallyunsupported is the argument that the word kosher will become “exclusively
associated” with the Applicant, as is the one that there would be a “single entity”
with “unilateral authority” to determine what is kosher. There is also no indicationthat “.kosher” will be used to provide certification services.

78.

While the statement in the Application that the Applicant “intends to promote OK
Kosher certification and its clients in particular” might give the impression that the
Applicant intends to operate the domain in a self-serving manner and as a closed
gTLD, the likelihood of that happening is not established. An intention to use the TLD
in an improper manner is not even proven by the statements in the Application that“.kosher” will only be available to companies that have been “personally visited,
inspected and are known to be using the domain to promote kosher certification”
and that the TLD “aspires to become the premiere reliable source on the internet
about everything to do with Kosher certification”.

79.

Specifically, the Application does not indicate that only the Applicant will verify theeligibility to use the “.kosher” domain. The Expert disagrees that the Applicant has
failed to respond to his request for clarification as to who will personally visit
prospective registrants to certify their compliance with the appropriate standards.
Indeed, in response to the Expert’s request, the Applicant explicitly stated that
responsibility for the verification will lie with the “prospective registrant’s own
kosher certification organization”. This seems evidence enough of the lack of groundof the Objector’s claim that only the Applicant will verify eligibility and will be able
to determine arbitrarily what registrants will have access to “.kosher” domains. On
the other hand, the fact that registration will be subject to some form of third party
verification of the conformity to objective standards provides precisely reassurance
that the “.kosher” gTLD will only be available to registrants who use the domain for
legitimate uses, in line with concerns voiced by the Objector.

80.

The Objector’s reference to a purported opposition of the GAC to the registration of
the “.halal” gTLD is incorrect, as the opposition was by some members of the GAC
only.

81.

On the other hand, the Applicant’s intention to take the broader interests of thecommunity into consideration is borne out by its offers to cooperate with the
Objector in the operation of the domain and to give them an equal partnership.

82.

What is more significant, and ultimately dispositive, however, is that the ICANN
mechanism for operating gTLDs provides significant safeguards against any type of19abuse. As correctly remarked by the Applicant, the RA that it would be required to
execute as a condition for registration of the “.kosher” domain would obviously bebinding on it and would oblige it to comply with all the commitments, statements ofintent and business plans stated in the Application.
83.

The Applicant would furthermore be subject to the obligation set out in Article 3(c)of Specification 11 to operate “.kosher” in “a transparent manner consistent withgeneral principles of openness and non-discrimination by establishing, publishing
and adhering to clear registration policies”. The Expert cannot accept the argumentthat the openness and non-discrimination obligations laid down in that provision
would not prevent the Applicant from resorting to restrictive criteria, if it appliedthem openly and even-handedly. That argument presupposes an interpretation of
Article 3(c) that would render it completely meaningless and is therefore untenable.
Article 3(c) is a fundamental provision in the overall system, and it must be assumed
that it will be interpreted constructively and not in a formalistic manner.

84.

The enforceability of the commitments in question in the event of alleged violationby the Applicant would be assured by the PICDRP provided for by Article 2 ofSpecification 11. This will be binding on the Applicant because, contrary to the
Objector’s contention, the Applicant will not have the option of not subscribing toSpecification 11. There is no evidence that the Objector, or any third party for thatmatter, would be unable to rely with confidence on the PICDRP, should it turn outthat the Applicant will operate “.kosher” improperly. Accordingly, there is no basis
for the Objector’s argument that the Applicant would be in a position to apply“subjective standards to exclude the Objector and its clients or to contradict the
Objector’s certification standards, so long as it did so openly and equally”. The whole
purpose of the RA and of the public interest commitments and of the PICDRP is
precisely to avoid similar outcomes.

85.

The Expert is unable to follow the Objector’s argument that the Applicant “cannot
escape” the language of its Application and that allowing the arguments put forwardin these proceedings to supplant the language of the Application would render the
ICANN objection process moot. In the opinion of the Expert, whether an application
for a gTLD may give rise to some form of detriment must be assessed by reference,
not to the moment of submission of the application, but by reference to the time
when the gTLD will be active, and taking into consideration any intervening
circumstances. It is only at that time that any detrimental effect of the application
will become concrete and relevant.

86.

In the present instance, subsequent to the filing of the Application ICANN introduced
a mechanism to ensure the respect and enforcement of public interest
commitments (Specification 11). In the eyes of the Expert this mechanism is capableof providing adequate safeguards against any improper behaviors by the Applicant
in the use of the “.kosher” gTLD to the detriment of other members of the KCO
community.

87.

Moreover, in the course of these proceedings the Applicant gave assurances as tothe accessibility of the registry to other members of the KCO community. The Expert

20

rejects the Objector’s argument that such assurances cannot be relied upon,
because they allegedly contradict the statements of the Application and would not
be incorporated in the Applicant’s public interest commitments. The assurances
given on behalf of the Applicant in these proceedings appear convincing and madein good faith. More importantly, they have been given in the context of adversarial
proceedings, the outcome of which will be public,10 in response to specific concernsof the Objector and with a view to achieving the rejection of the Objection. The
general principles of good faith and of the prohibition of inconsistent behavior,
which are clearly applicable to the relationships at issue, would prevent the
Applicant from reneging on the assurances given in these proceedings. In the eventthat an access dispute were submitted to the PICDRP in relation to the use of the“.kosher” gTLD, such assurances would certainly have to be taken into consideration
to interpret and supplement the commitments.
88.

Also considering its latest assurances, there is therefore no evidence that the
Applicant intends to operate “.kosher” as a “closed” registry and that there would
not be sufficient safeguards were it eventually to attempt to do so.

89.

Like the Expert in Case No. EXP/493/ICANN/110 (§ 58), also in this case the Expert
cannot find with certainty that the Applicant will in future unfailingly operate“.kosher” in all respects in conformity with its commitments. Yet, like in that case,“neither has the Objector offered convincing reasons to believe that the Applicant
will not do so, though that is its burden”.

90.

Accordingly, having regard to the assurances given by the Applicant and to thecurrent safeguards, in the opinion of the Expert there is today no serious ground forthe accusation that the Application is designed to confer “monopoly status” on the
Applicant over “.kosher” domain names and to permit the Applicant to engage in“exclusionary practices”, or in any event that it could lead to such a result. Nor doesit seem likely that upholding the Application would lead to a “usurpation” of kosher
by the Applicant or, more simply, that the Objector will not be permitted to registera domain under “.kosher”. Finally, no relevance can be attributed in this context tothe simple interest of the Objector “that there should not be a .kosher gTLD at all”
(Applicant’s Annex AE).

91.

Furthermore, the Objector has provided no indication as to any other factor capableof evidencing a likely material detriment according to the AGB. It has not shown that
the KCO community is dependent on the use of the “.kosher” gTDL for its core
activities.

92.

To conclude, the Expert finds that the Objector has not convincingly proven its claimthat the Application will impact negatively on itself, the community of KCOs or thebroader community of persons or entities with a stake in kosher. Specifically, it has
not demonstrated that the Application could damage the economic or otherinterests of the KCO community or its reputation or could interfere with that10

The present Expert Determination will be published in accordance with Article 21(g) of theProcedure.

21

community’s core activities, or that the Applicant does not intend to act inaccordance with the interests of the community. Absent such evidence, there canbe no finding of material detriment to the community or to a substantial portion ofit, as required by the Objection Procedures.
IV.

CONCLUSION

93.

Section 3.5.4 of the Objection Procedures provides that for a community objection
to prevail all four tests laid out in that Section must be met.

94.

In the present case the Expert has found that the first (clear delineation of thecommunity: Section III.A above) and third (strong association between the string andthe community: Section III.C above) tests are met. In relation to the second test
(substantial opposition within the community: Section III.B above) the Expert has
not deemed it necessary to come to a definitive finding in light of its conclusion on
the fourth test. In relation to the fourth test (material detriment: Section III.D above)
the Expert has found that the Objector has failed to provide convincing evidence andto satisfy its burden of proof.

95.

Since at least one of the four tests contemplated by Section 3.5.4 of the Objection
Procedures (detriment) is not met, the Expert must conclude that the Objection
cannot be sustained.

V.
96.

DECISION
For the reasons set out above, in accordance with Art. 21(d) of the Procedure, theExpert’s final and binding decision is as follows:(i)

The Objection is rejected and the Applicant accordingly prevails;(ii)

The Applicant shall be refunded by the Centre the costs advanced to theInternational Chamber of Commerce.

Place of the Expertise: Paris
January 14, 2014
The Expert_______________________________
Professor Luca G. Radicati di Brozolo

22