INTERNATIONAL CHAMBER OF COMMERCE
INTERNATIONAL CENTRE FOR ADR
CASE NO. EXP/619

FINAL EXPERT DETERMINATION

Sole Party:

Internet Corporation for Assigned Names and Numbers

Under theICC Rules for the Administration of Expert Proceedings
in force as from 1 February 2015

Related to the matter EXP 395/ICANN/12 concerning .CHARITY
betweenProfessor Alain Pellet (Independent Objector) v. Corn Lake, LLC (Applicant)

12 December 2017

Expert Panel:Prof. Fabien Gélinas (Chair)Prof. Luca G. Radicati di Brozolo
Mrs Deva Villanúa

TABLE OF CONTENTS
DEFINED TERMS .............................................................................................................................................................. 3
1. OVERVIEW .................................................................................................................................................................... 5
2. THIS FINAL REVIEW PROCEDURE ........................................................................................................................ 92.1. THE SOLE PARTY AND RELATED PERSONS AND ENTITIES............................................................................................ 92.2. THE REVIEW PANEL ............................................................................................................................................................ 10
2.3. THE PLACE, LANGUAGE, AND TIMING OF THE PROCEEDINGS ................................................................................... 122.4. THE REVIEW PANEL’S MISSION ........................................................................................................................................ 122.5. THE DOCUMENTS ................................................................................................................................................................. 13
2.6. THESE PROCEEDINGS .......................................................................................................................................................... 14
3. THE PROCEEDINGS AND DETERMINATION UNDER REVIEW .................................................................. 15
3.1. THE PROCEEDINGS BEFORE THE EXPERT ....................................................................................................................... 15
3.2. THE ISSUES BEFORE THE EXPERT..................................................................................................................................... 17
4. REVIEW OF THE EXPERT DETERMINATION .................................................................................................. 18
4.1. STANDARD OF REVIEW ....................................................................................................................................................... 18
4.2. THE IO’S INDEPENDENCE AND IMPARTIALITY .............................................................................................................. 19
4.3. THE IO’S STANDING............................................................................................................................................................. 20
4.4. THE COMMUNITY OBJECTION ........................................................................................................................................... 22
4.4.1. THE COMMUNITY TEST ....................................................................................................................................................... 23
4.4.2. THE TARGETING TEST ......................................................................................................................................................... 26
4.4.3. THE SUBSTANTIAL OPPOSITION TEST .............................................................................................................................. 28
4.4.4. THE DETRIMENT TEST........................................................................................................................................................ 29
5. FINAL DETERMINATION ....................................................................................................................................... 372

Defined Terms

Term

Meaning

Applicant/ Corn Lake Corn Lake, LLC (United States)
Application
The new gTLD application filed by the Applicant for“.CHARITY”; application ID: 1-1384-49318
Additional
IO’s Additional Submission filed with ICC on 20 August 2013;
Submission
Applicant’s Additional Submission filed with ICC on 6 Sept. 2013
Beijing Communiqué Proposed and adopted safeguards for certain sensitive strings in/Advicesectors considered by the GAC as “regulated” or “highly
regulated”
Board
ICANN’s Board of Directors
BGC
ICANN’s Board Governance Committee
CentreThe International Centre for ADR of the International Chamber ofCommerce
Community
An objection to a gTLD application falling within the definition of
Objection“Community Objection” under section 3.2.1. of Module 3 of the
Guidebook (and also contained in Article 2(e)(iv) of theProcedure)
DNS
Domain Name System
DonutsThe Applicant’s parent company, Donuts Inc.
DRSP
Dispute Resolution Service Provider
Determination
Expert Determination in case no. EXP/395/ICANN/12
EFL
Excellent First Limited (Cayman Islands)
EFL Application
The new gTLD application filed by EFL for “.慈善” [Charity](Application ID: 1-961-6109)
Expert
The expert panel comprising the Expert, Mr Tim PortwoodGAC
ICANN’s Governmental Advisory Committee
GNSO
Generic Names Supporting Organization
Guidebook
The gTLD Applicant Guidebook issued by ICANN (version 201204-06)
ICANN
Internet Corporation for Assigned Names and Numbers
ICC
International Chamber of Commerce
ICDR
International Centre for Dispute Resolution
3

IO
IRP
IRP
Declaration

Independent Objector, Professor Alain Pellet
Independent Review Process
Final The Final Declaration, dated 17 October 2016, rendered by the
Independent Review Panel comprised of Mark Morril, Michael
Ostrove and Wendy Miles QC (Chair)
LPI
Limited Public Interest
New gTLD
New generic top level domain
NGPC
New gTLD Program Committee
Objection
The Objection dated 12 March 2013 transmitted by the IO to the
ICC on 13 March 2013 by email
PIC Spec
Public Interest Commitments Specification
Procedure
The new gTLD Dispute Resolution Procedure issued by ICANN
as the Attachment to Module 3 of the Guidebook
Review Panel,
Panel constituted to review the Expert Determination in case no.
This Panel
EXP/395/ICANN/12
Response
Applicant’s Response to the IO’s Community Objection, dated 6
June 2013
Rules
The Rules for Expertise of the International Chamber ofCommerce (in force as from 1 January 2003); or the ICC Rules for
the Administration of Expert Proceedings (in force as from 1
February 2015)
SRL
Spring Registry Limited (Gibraltar)
SRL Application
The new gTLD application filed by SRL for “.CHARITY”;(Application ID: 1-1241-87032)

4

1. OVERVIEW
1.

Under its New Generic Top Level Domain (“New gTLD”) Program, the Internet
Corporation for Assigned Names and Numbers (“ICANN”) invited applications for
New gTLD registries. As part of the program and with a view to protecting certain
existing rights and interests, ICANN established a process to open a path for formal
objections to be made during the application period. The process is governed by the
New gTLD Applicant Guidebook (the “Guidebook”), which contains, as an
Attachment to Module 3, a New gTLD Dispute Resolution Procedure (the“Procedure”).1

2.

Dispute resolution proceedings are administered by a dispute resolution service
provider (“DRSP”) in accordance with the Procedure and the applicable rules of theprovider. Four kinds of objections are contemplated by the Guidebook: String
Confusion, Existing Legal Rights, Limited Public Interest, and Community. 2 The
dispute resolution provider responsible for Limited Public Interest and Community
objections is the International Chamber of Commerce (“ICC”), and the applicable
rules for the procedure are the Rules for Expertise of the ICC (now the ICC Rules for
the Administration of Expert Proceedings) (the “Rules”), as supplemented by the
ICC.3

3.

In order to ensure that the best interest of the public would be represented in theprocess, ICANN also established the figure of the Independent Objector (the “IO”).4
According to section 3.2.5 of the Guidebook, the IO may file a formal objection to a

1

gTLD Applicant Guidebook, Module 3, version 2012-06-04, at s 3.2, online:
http://newgtlds.icann.org/en/applicants/agb [Guidebook].
2
Ibid at s 3.2.1
3Ibid at s 3.2.3.
4
Ibid at s 3.2.5.

5

New gTLD application. The IO’s role is not to act on behalf of any particular persons
or entities, but in the best interests of the public who use the global internet.5 The IO
may file objections against “highly objectionable” New gTLD applications to which no
objection has been filed, but is limited to filing two types of objections: (1) Limited
Public Interest objections and (2) Community objections. The IO is granted standing tofile objections on these enumerated grounds, but can only do so if at least one
comment in opposition to the application is made in the public sphere. Professor Alain
Pellet acted as the IO during the relevant period.

4.

These proceedings originally arise out of a Community Objection (the “Objection”)
filed by the IO on 13 March 2013 against the application of Corn Lake, LLC (“CornLake” or the “Applicant”) for the .CHARITY gTLD (the “Application”).6 The IO, on
the same day, filed substantially identical Community objections against two otherapplications for the .CHARITY string, namely:7
i. Excellent First Limited’s Application (“EFL”; the “EFL Application”)
for .慈善 (the Chinese Internationalized Domain Name for.CHARITY);8 andii. Spring Registry Limited’s Application (“SRL”; the “SRL
Application”).9
The three objections of the IO to the above applications raised, among other issues, a
concern that the lack of an eligibility policy restricting registration to charitable or not-

5

Ibid.
IO’s Community Objection to Corn Lake’s Application, filed on 13 March 2013, online:
https://www.independent-objector-newgtlds.org/home/the-independent-objector-s-objections/charity-cty-cornlake-llc/ [Objection].
7
Ibid at para 46.
8
IO’s Community Objection to Excellent First Limited’s Application, filed on 13 March 2013, online:
https://www.independent-objector-newgtlds.org/home/the-independent-objector-sobjections/%E6%85%88%E5%96%84-cty-excellent-first-limited/ [EFL Objection].
9
IO’s Community Objection to Spring Limited’s Application, filed on 13 March 2013, online:
https://www.independent-objector-newgtlds.org/home/the-independent-objector-s-objections/charity-cty-springregistry-limited/ [SRL Objection].
66

for-profit organizations created the likelihood of a detriment to the rights or legitimate
interests of the charity community, to users, and to the general public.10 The ICC
consolidated all three .CHARITY community objections and appointed the same
Expert (Mr Tim Portwood) to serve in all three objection proceedings.

5.

In April 2013, shortly after the filing of the objections concerning the .CHARITY
strings, the GAC issued its Beijing Communiqué, advising that ICANN’s Board (the“Board”) adopt certain eligibility restrictions for sensitive strings in some regulated
sectors including the charity sector (the “Beijing Advice”). On 29 October 2013, theChair of the Board, Stephen Crocker, on behalf of the New gTLD Program Committee(the “NGPC”), wrote to Heather Dryden, in her capacity as Chair of the GAC, that the
NGPC intended to accept the Beijing Advice. Attached to the letter was a document
describing how ICANN intended to implement the required safeguards throughappropriate language in the public interest commitments specifications (the “PICSpec”) of the New gTLD Registry Agreement.

6.

On 9 January 2014, the Expert rendered his determinations for all three .CHARITY
Community objections. The Expert upheld the objection against the Corn Lake
Application and rejected those against the other two applications. It is these different
outcomes, the circumstances in which they were reached, and the impact of the
adoption by ICANN of the GAC Advice that gave rise to this review procedure.

7.

The Board formally adopted the Beijing Advice by Resolution of 5 February 2014.11
By the same Resolution, the Board directed ICANN’s President and CEO to initiate apublic comment period with respect to a proposed review mechanism to addresscertain perceived inconsistent or unreasonable objection determinations (the “Final
Review Procedure”). The scope of the Final Review Procedure as initially proposed10

See Objection, para. 46.
Approved Resolutions, Meeting of the New gTLD Program Committee, online:
https://www.icann.org/resources/board-material/resolutions-new-gtld-2014-02-05-en.

11

7was limited to certain string confusion determinations. In March 2014, Corn Lake’s
parent company, Donuts Inc., used the public comment process to ask that the Board
extend the Final Review Procedure to other determinations, including community
objection determinations such as the one under review here, and limited public interest
determinations including one concerning .HOSPITAL. ICANN implemented the Final
Review Procedure on 12 October 2014 without extending its scope beyond the few
string confusion determinations originally contemplated in the initial proposal. In
February 2016, however, the Board resolved to extend the Final Review Procedure to.HOSPITAL.12

8.

Corn Lake then initiated an Independent Review Process (“IRP”) against ICANN
challenging: (1) the Corn Lake Determination, (2) the Reconsideration Determinationof the Board Governance Committee (the “BGC”, from which Corn Lake had
unsuccessfully sought relief), and (3) the Board’s decision not to include the Corn
Lake Determination concerning .CHARITY in the scope of the Final Review
Procedure.13 On 19 October 2016, the IRP Panel, in its Final Declaration (the “IRP
Final Declaration”) denied as untimely the first two challenges, but accepted thethird, declaring that the Board’s failure to extend the Final Review Procedure to theDetermination under review was inconsistent with ICANN’s Bylaws, notably its nondiscrimination provisions.14 On 8 November 2016, the Board accepted the findings in
the IRP Final Declaration, including the recommendation that “the Board extend the[Final Review Procedure] to include review of Corn Lake’s .CHARITY Expert
Determination”15 and directed that all necessary steps be taken to implement it.

12

See https://features.icann.org/consideration-expert-determination-re-objection-application-hospital.
IRP Final Declaration in Corn Lake, LLC & ICANN, ICDR Case No. 01-15-0002-9938, 17 October 2016, para
7.2.
14
IRP Final Declaration.
15
ICANN, Adopted Board Resolutions, 8 November 2016, online: https://www.icann.org/resources/boardmaterial/resolutions-2016-11-08-en#2.b [Board resolution].
1382. THIS FINAL REVIEW PROCEDURE
The basis for this Final Review Procedure is a “Request for the administration of

9.

Expert proceedings regarding the Final Review of the Community Objection against
Corn Lake LLC’s application for .CHARITY” (“ICANN’s Request”), filed by
ICANN on 3 March 2017 (and followed by the payment of the required filing fee on
24 March 2017) pursuant to the Board’s decision of 8 November 2016, a decision
which was itself taken as a consequence of the IRP Final Declaration of 17 October
2016 in Corn Lake. LLC v. ICANN.16

2.1. The Sole Party and Related Persons and Entities
10.

The sole party in these proceedings is:
INTERNET CORPORATION FOR ASSIGNED NAME AND NUMBERS (ICANN)
Mrs Amy Stathos (amy.stathos@icann.org)
Mrs Elizabeth Le (elisabeth.le@icann.org)
Mr Jared Erwin (jared.erwin@icann.org)
Mr Christopher Bare (christopher.bare@icann.org)
12025 Waterfront Drive, Suite 300
Los Angeles CA 90094
USA
ICANN is not represented by outside counsel in this matter.

11.

The parties to the proceedings that led to the Determination under review are CORN
LAKE, LLC (USA) and the Independent Objector, namely, Professor Alain Pellet(France). For the purpose of conflict verification, the additional related persons andentities listed by ICANN, which include the representatives of the parties, are:

16

DOMAIN VENTURE PARTNERS PCC LIMITED (Gibraltar);
DONUTS, INC. (USA);

Ibid.

9

-

DOZEN DONUTS, LLC (USA);EXCELLENT FIRST LIMITED (Cayman Islands);
FAMOUS FOUR MEDIA LIMITED (Gibraltar);
Mr Daniel Müller (France);
Mr Daniel Schindler (USA);
Mr Don C. Moody (USA);Mr John Genga (USA);Mr Jon Nevett (USA);Mr Pam Little (China);
Mr Phon Van den Biesen (The Netherlands);
Mr Sam Wordsworth (UK);Mr Tim Portwood (UK);
Ms Héloïse Bajer-Pellet (France);
SPRING REGISTRY LIMITED (Gibraltar);
THE IP AND TECHNOLOGY LEGAL GROUP, P.C. (USA);
Van des biesen kloostra advocaten (The Netherlands); andZODIAC HOLDINGS INC (Hong Kong).

2.2. The Review Panel12.

On 27 September 2017, in accordance with Article 3(2) of Appendix I to the Rules, thePresident of the Standing Committee of the ICC Centre for ADR constituted the
Review Panel. On 29 September 2017, the decision was notified and the filetransferred to the Review Panel. Professor Fabien Gélinas, a Canadian national, wasappointed as Chair of the Panel. Professor Luca G. Radicati di Brozolo, an Italiannational, and Mrs Deva Villanúa, a Spanish national, were appointed as co-experts.
Each of the experts had previously completed and filed with the ICC a Statement ofAcceptance, Availability, Impartiality and Independence, and Statement of Insurance.

13.

Prof. Fabien Gélinas holds graduate degrees and certificates from Montreal, Paris, andOxford. He is the Sir William C. Macdonald Professor of Law at McGill University, in
Canada, where he teaches arbitration and the common law and civil law of contracts.
He publishes in the areas of dispute resolution and global governance, and has
10experience of ICANN’s dispute resolution procedures. A senior barrister, he wasformerly General Counsel of the ICC International Court of Arbitration. He serves
regularly as arbitrator in international matters, and occasionally as counsel.

14.

Prof. Luca G. Radicati di Brozolo holds degrees in law (Parma) and in political science(Florence). He is a founding partner of ArbLit, in Milan, and a door tenant of Fountain
Court Chambers in London. He is also a Full Professor at the School of Law of the
Università Cattolica di Milano, where he holds the chair of Private International Law
and is the Director of the Institute of International Studies. He publishes widely on
arbitration and international law. He acts as arbitrator in international settings and has
experience of ICANN’s gTLD dispute resolution procedures.

15.

Mrs Deva Villanúa holds a double degree in Law and Business Administration from
University Carlos III in Madrid. She has been with Armesto & Asociados, a boutique
firm of arbitrators, since 2002. She began as a lawyer and tribunal secretary and now
acts as arbitrator in commercial and investment matters, having served as chair,emergency arbitrator, sole arbitrator and party-appointed arbitrator. She has experienceof ICANN’s gTLD dispute resolution procedures. Mrs Villanúa is a tutor in the Private
Law department of Carlos III University in Madrid.

16.

The experts’ contact details are as follows:
Prof. Fabien Gélinas (Chair)
MCGILL UNIVERSITY FACULTY OF LAW
3674, Peel Street
H3A 1W9 Montreal, QC
CanadaE-mail: fabien.gelinas@mcgill.ca
Prof. Luca G. Radicati di Brozolo (Co-Expert)
ARBLIT - RADICATI DI BROZOLO SABATINI BENEDETTELLI TORSELLO
Via Alberto da Giussano n. 15
20145 Milan
Italy
11

E-mail: luca.radicati@arblit.com
Mrs Deva Villanúa (Co-Expert)
ARMESTO & ASOCIADOS
General Pardiñas 102, 8° izquierda
28006 MadridSpain
E-mail: dvg@jfarmesto.com

2.3. The Place, Language, and Timing of the Proceedings
17.

Pursuant to Sections V and VI of ICANN’s Request, the place of these proceedings is
Paris, France, and the language of the procedure is English. Pursuant to the Request,
there shall be no meetings, site visits nor hearings, and the draft determination shall be
submitted to the ICC within 45 days from the transfer of the file to the Review Panel oras soon as possible thereafter.

2.4. The Review Panel’s Mission
18.

Pursuant to ICANN’s Request, the Review Panel is to render a “written and reasoned
Final Expert Determination” the purpose of which is: “to establish whether theunderlying .CHARITY Expert Determination (EXP/395/ICANN/12) was reasonable inlight of [the] decisions in the other two consolidated matters through an appropriate
application of the standard … set forth in Module 3 of the Applicant Guidebook and inlight of ICANN’s adoption of the Beijing Communiqué requiring each successful
applicant to impose registration restrictions.” The Review Panel must either conclude
that the underlying determination is supported by the applicable standard and adopt it
as the Final Expert Determination in the matter; or reverse the determination underreview and replace it with its Final Expert Determination. The mission, as understoodby the Review Panel, does not contemplate the review of the cost allocation between
the original parties effected under Article 14(e) of the Procedure.
12

19.

In its Request, ICANN waived the obligation of the Review Panel under the Rules toprepare an Expert Mission and a Procedural Timetable.

2.5. The Documents
20.

Pursuant to ICANN’s Request, the documents to be reviewed by the Panel include theDetermination and its underlying case file, (EXP/395/ICANN/12); the determinations
and underlying case files in the two consolidated cases (EXP/399/ICANN/16;
EXP/400/ICANN/17); the IRP Final Declaration; and the 8 November 2016 ICANN
Resolution17. As background, the Panel was also invited to read three Final Review
Procedure Expert Determinations, namely: VerySign Inc. v. United TLD Holdco Ltd.
String Confusion Objection Final Review Determination;18 Commercial Connect LLC
v. Amazon EU Sarl String Confusion Objection Final Review Determination;19 andIndependent Objector v. Ruby Pike, LLC Limited Public Interest Objection Final
Review Determination.20

21.

After deliberation, the Review Panel decided that it was necessary to consider, as partof the underlying case file, the exchange of correspondence which took place inDecember 2013 between the Applicant, the IO, the Expert and the ICC. This
correspondence consists of:

An email of 3 December 2013 (received on 4 December) from the Applicant
purporting to “update” the Expert concerning the adoption of the Beijing Advice;
An email of 5 December 2013 from the IO objecting to the submission on bothprocedural and substantive grounds;

17

Ibid.
ICDR Case No. 01-15-0003-3822.
19
ICDR Case No. 01-15-0003-3821.
20
ICC EXP. 600, online: https://newgtlds.icann.org/sites/default/files/drsp/07sep16/determination-3-1-150515195-en.pdf.
18

13




22.

An email of 11 December 2013 from the ICC stating that it was for the Expert todecide whether to admit the parties’ further submissions into the proceedings;
A letter of 13 December 2013 from the Expert dismissing the further submissions
on procedural grounds.

The correspondence referred to above is publicly available as a result of ICANN’stransparency policy.21 The Review Panel also obtained from the ICC the date on which
the Determination under review had been submitted to the ICC for scrutiny under theRules, namely, 16 September 2013.22

2.6. These Proceedings
23.

ICANN’s Request was filed with the ICC on 27 July 2017. ICANN sent a revised
Request on 3 August 2017. The Review Panel was constituted on 27 September 2017
and the file transferred to it on 29 September 2017. The Panel reviewed the relevant
documents, and deliberated through email exchanges and by telephone conferencing.

24.

Pursuant to the Request, the Review Panel was not permitted to contact ICANN, theIO, or Corn Lake, which it did not.

25.

On 14 November 2017 (within 45 days from the transmission of the file), a draft
Determination was submitted to the ICC for scrutiny in accordance with the Rules.

26.

At ICANN’s request and with the agreement of the Panel, this Final Expert
Determination is to be posted on ICC’s web page dedicated to ICANN procedures.

21

The correspondence can be found, for example, in the IRP and the BGC Reconsideration case files:
https://www.icann.org/resources/pages/corn-lake-v-icann-2015-04-07-en;https://www.icann.org/resources/pages/14-3-2014-01-30-en.
22
Email from ICC to Review Panel, 20 October 2017.

14

3. THE PROCEEDINGS AND DETERMINATION UNDER REVIEW

3.1. The Proceedings before the Expert
27.

The proceedings in the matter under review arose out of a community objection
transmitted by the IO to the ICC on 13 March 2013.

28.

On 12 April 2013, the ICC informed the parties that it was considering theconsolidation of the Objection with two other matters initiated by the IO regarding
applications for the .CHARITY string, and on 7 May 2013 notified the parties that it
had consolidated the matters in question.

29.

After a failed attempt to file a Response complying with the requirements ofArticle 11(e) of the Procedure, the Applicant transmitted by email a complying
Response on 23 June 2013.

30.

Having appointed the Expert on 4 July 2013, the ICC confirmed to the parties theconstitution of the Panel (comprised of the Expert as the sole member) on 2 August
2013, and transmitted the file to the Expert on the same day.

31.

On 2 August 2013, the IO requested leave to file an Additional Submission, to which
the Applicant objected on 8 August 2013.

32.

On 9 August 2013, the Expert invited each party to file an Additional Submission, theIO by 22 August and the Applicant by 2 September 2013.

33.

Between 10 and 15 August 2013, the IO and the Applicant both requested brief
extensions of time which resulted in the extension of the deadlines for Additional
Submissions to 24 August 2013 for the IO and to 6 September 2013 for the Applicant.
15

34.

The IO filed its Additional Submission on 22 August and the Applicant on
6 September 2013.

35.

On 16 September 2013, the Expert submitted his draft Determination to the ICC.23

36.

On 3 December 2013, while the draft Determination was in the ICC scrutiny process
under the Rules, the Applicant wrote to the ICC, the Expert and the IO to “update thePanel” on ICANN’s 29 October 2013 formal announcement of its decision to adopt the
Beijing Advice, explaining that, as any successful applicant would now be compelled
to impose the registration restrictions the IO had been arguing for to prevent material
detriment, the IO’s Objection had become moot.24

37.

On 5 December 2013, the IO wrote to the Expert to object to the Applicant’s“unsolicited additional statement,” and, should the Panel accept the statement, to assert
his right to respond. The IO added that in any event, the unsolicited statement only
served to show a lack of consistency and coherence in the Applicant’s position.25

38.

On 11 December 2013, the ICC wrote to the parties indicating that it was for the
Expert to decide whether to admit the parties’ further submissions.26

39.

On 13 December 2013, the Expert dismissed the further submissions including thesubstantive content of the IO’s response.27

23

This Review Panel asked the ICC to provide it with the date when the Expert submitted his draft
Determination to the ICC for the purpose of scrutiny. The information was provided by email on 20 October
2017.
24This is referred to in the IRP Final Declaration, at p. 15, para. 6.46.
25
See note 24, above.
26
Ibid.
27
Ibid.

16

40.

On 9 January 2014, the three determinations in the consolidated proceedings wererendered. The IO’s Objection was accepted only in respect of the Applicant, Corn
Lake.28

3.2. The Issues before the Expert
41.

As a preliminary matter, while the IO confirmed in his Objection that he consideredhimself “to be impartial and independent” and that he was acting in “the best interestsof the public who use the global internet,” the Applicant questioned the impartialityand “true independence” of the IO in these proceedings.

42.

Another preliminary matter raised by the Applicant was the question of standing. The
Applicant argued that the IO lacked the standing required to bring the Community
Objection.

43.

The substantive issues before the Expert turned on the application of section 3.5.4. ofthe Guidebook, which sets out four tests that must be met cumulatively for acommunity objection to prevail. These yield four issues: whether the community
invoked by the IO is a “clearly delineated community”; whether the community
opposition is “substantial”; whether there is “a strong association between thecommunity invoked and the … string”; and whether the application creates “alikelihood of material detriment to the rights or legitimate interests of a significant
portion of the community.”

44.

The IO endeavoured to establish that his Objection met the four tests and the Applicant
took the position that the IO had failed on each of the four tests.

28

Ibid.

17

45.

With respect to the fourth test, the material detriment test, the following new question
arose for the Expert out of the events that unfolded after the filing of the last
submissions contemplated in the timetable. In view of the adoption and imposition by
ICANN of the registration restrictions that were at the heart of the controversy before
the Expert over the material detriment test, should the Expert have re-opened theproceedings or otherwise taken account of the new facts?

4. REVIEW OF THE EXPERT DETERMINATION
4.1. Standard of Review
46.

This Panel is to decide whether the Determination “was reasonable in light of [the]decisions in the other two consolidated matters through an appropriate application of
the standard … set forth in Module 3 of the Applicant Guidebook and in light of
ICANN’s adoption of the GAC’s Beijing Communiqué requiring each successful
applicant to impose registration restrictions.”29

47.

This Panel must therefore rely on the provisions of the Guidebook in deciding whether
the Determination is reasonable. In doing so, however, this Panel must take into
consideration the events surrounding the Beijing Communiqué that unfolded, in part,after the proceedings that led to the Determination were closed. The Panel is also
invited to consider, as “background,” Final Review Procedure Expert Determinations
that were rendered after the Determination.30

48.

This Panel will briefly assess all relevant sections of the Determination. Particularemphasis will be placed, however, on the Determination’s finding of “detriment,”

29
30

ICANN Request, section XI.
Ibid.

18

which the IRP Final Declaration that ultimately led to these review proceedings
singled out as the potentially problematic element in the Determination.

49.

This Panel will conduct its review of the Determination to assess whether its findings
are reasonable, in light of the provisions of the Guidebook and the determinations in
the consolidated cases, as well as of the adoption by ICANN of the Beijing Advice
requiring each successful applicant to impose eligibility restrictions. If this Panelconcludes that a finding of the Determination is not reasonable, it will state the reasons
why, and will issue a final finding replacing the finding of the Expert.

50.

This Panel notes at the outset that it was impressed with the overall quality and rigor of
the Determination under review. In particular, the Expert manifestly takes careful
account of the parties’ representations and arguments as developed in the Objection,
the Response and the Additional Submissions. The Expert carefully weighs thearguments made in those submissions, to which copious and detailed references are
made in the Determination. As a result, the Panel will not rehearse the parties’
positions on points other than those which may raise issues as to reasonableness.

4.2. The IO’s Independence and Impartiality
51.

In the course of the proceedings, the Applicant informally raised a challenge to the
IO’s impartiality and independence. Article 3.2.5. of the Guidebook explains that theIO “does not act on behalf of any particular persons or entities, but acts solely in thebest interests of the public.” It further provides that an independent objector must “beand remain independent and unaffiliated with any of the gTLD applicants.”

52.

The basis for what the Expert treated as a challenge is a short paragraph on page 3 of
the Applicant’s Additional Submission, at the end of a section in which the Applicant

19characterizes the IO’s position on registration restrictions as overreaching. The
paragraph reads as follows:“Such overreaching, coupled with the fact that the IO devoted the bulk of his
efforts toward gTLDs applied for by Donuts in particular, has caused applicant toquestion the Objector’s true independence. Applicant has nothing further to addon that subject, and leaves it to the Panel to deny the Objection for its lack of
merit, regardless of the IO’s motives in bringing it”.
53.

It is doubtful whether the Applicant’s comment on the IO’s independence wasintended as a challenge. Understandably, out of caution, the Expert treated it as such,noting that the mere statement of the Applicant concerning the alleged targeting of
Donuts’ applications is not a basis in and of itself to question the IO’s impartiality andindependence under section 3.2.5. of the Guidebook. The Expert also noted that theconsolidated cases before him showed that the IO did object to applications filed byother entities.

54.

As the Expert correctly found, there is no basis in the record to challenge the IO’s
confirmation that he was acting exclusively in the best interest of the public. This
Panel concludes, therefore, that the Expert’s finding concerning the IO’s independence
and impartiality was reasonable.

4.3. The IO’s Standing
55.

The Applicant challenges the IO’s standing to bring the Community Objection,
arguing that he must act on behalf of a ‘clearly delineated community’ strongly
associated with the relevant string and against a “highly objectionable” application.31

31

Response, pp. 6-7.

20

56.

The Guidebook sets out in section 3.2.5. the “mandate and scope” for independent
objectors. As the Expert explains, there are three elements: (i) “The IO is granted
standing to file objections on th[e] enumerated grounds, notwithstanding the regularstanding requirements for such objections…” (ii) “The IO may file objections against“highly objectionable” gTLD applications to which no objection has been filed”; and(iii) the IO shall not object to an application unless at least one comment in opposition
to the application is made in the public sphere”.

57.

The Applicant treats all three elements as standing requirements. According to theExpert, however, the first element is a standing requirement (i.e.: being the IO within
the meaning of the Guidebook), but not the other two. The third element, which does
not mention standing, is framed as a condition of admissibility. The second element
uses permissive language (“may file”) and is best understood as referring to adiscretion to be exercised by independent objectors.

58.

The Expert’s position is carefully explained and finds support in ICANN’s
Explanatory Memorandum on the Description of Independent Objector for the New
gTLG Dispute Resolution Process of 18 February 2009. This states: “It is anticipatedthat in each instance the Independent Objector would make an independent assessment
as to whether an objection is warranted … It is anticipated that the Independent
Objector will have the discretion and judgment to only act in clear cases where thegrounds for objection seem strong.”

59.

The conclusion that this second element of the mandate refers to the Independent
Objector’s discretion therefore seems reasonable. The Review Panel notes that theExpert’s approach to this issue is not universally followed.32 The standard of review

32See, for example, Independent Objector v. Ruby Pike, LLC Limited Public Interest Objection Final Review
Determination, supra, note 23, paras 56-58.

21

applied by this Panel, however, is one of reasonableness, not correctness. The Panelfinds the conclusion on standing reasonable.

4.4. The Community Objection
60.

As stated in Article 2(e)(iv) of the Procedure, a “Community Objection” refers to “theobjection that there is substantial opposition to the application from a significant
portion of the community to which the string may be explicitly or implicitly targeted.”

61.

In conducting its review of the Expert Determination on the merits of the Objection,
this Panel refers to section 3.5. of the Guidebook, which provides that the adjudicator
shall “use appropriate general principles (standards)” and may also refer “to otherrelevant rules of international law in connection with the standards.” More specifically,
section 3.5.4 provides that, for a Community Objection to succeed, the objector must
prove that:





62.

The community invoked by the objector is a clearly delineated community; andCommunity opposition to the application is substantial; andThere is a strong association between the community invoked and the applied-for
gTLD string; andThe application creates a likelihood of material detriment to the rights or legitimate
interests of a significant portion of the community to which the string may be
explicitly or implicitly targeted.

The findings of the Expert on the merits of the Objection are analysed below in theorder in which the four tests are introduced in the Guidebook, namely, the Community
test, the Substantial Opposition test, the Targeting test, and the Detriment test.

22

4.4.1. The Community Test
63.

The community invoked by the IO is the “charity sector,”33 which includes “allcharitable institutions.”34 The question for determination, as accurately framed by theExpert, is “whether the IO has proven to the Expert Panel that the ‘charity sector’
comprising all ‘charitable institutions’ constitutes a ‘clearly delineated community’.”35

64.

The Applicant insisted that the string itself should define a clearly delineatedcommunity.36 As the Expert correctly understood, however, the issue set forth in the
Guidebook is whether the “community invoked by the objector is a clearly delineatedcommunity.”65.

It was common ground before the Expert that the Guidebook does not provide a clear
definition of the term “community.” The Guidebook refers, instead, to a list of fivefactors which an expert “could balance” in coming to a determination, “including but
not limited to”:37
The level of public recognition of the group as a community at a local and/or global
level;

The level of formal boundaries around the community and what persons or entities
are considered to form the community;The length of time the community has been in existence;The global distribution of the community (this may not apply if the community is
territorial); andThe number of people or entities that make up the community.

33

Objection, para 9.
Objection, para 11.
35
Determination, para 117.
36
Response, p. 8.
37
Guidebook, s. 3.4.5.
34

23

66.

As the Expert helpfully notes,38 the IO and the Applicant agree that the distinctive
element of a community is commonality among members, be it of interests or ofcharacteristics, but they disagree about the degree of “cohesion” that is required: “ForIO, ‘commonality of certain characteristics’ is sufficient whereas for Applicant
cohesion rather than just a commonality of interests is required.”39

67.

The Expert relied on the 2007 ICANN Final Report on the introduction of New
gTLDs, which concludes that “community should be interpreted broadly and will
include, for example, and economic sector, a cultural community, or a linguistic
community.” 40 This Review Panel notes that this broad interpretation of community,
including the reference to “an economic sector,” is reflected in the Implementation
Guidelines set out in 2008, which contemplate the determination by a panel ofsubstantial opposition.41 To the Review Panel, it seems reasonable to assume that if an“economic sector” can potentially be understood as a community within the meaningof the program, so can the “charity sector.”

68.

In the reconsideration proceedings before the BGC, the Applicant took issue with theExpert’s application of the factors set out in the Guidebook and listed above.42

69.

Concerning the list of factors, the Review Panel notes that the list of factors set out in
the Guidebook is neither exhaustive nor determinative.

38

Determination, para 119.
Determination, para 119; and, notably, Objection, para 41; Response, p. 5.
40
ICANN Generic Names Supporting Organization, “Final Report: Introduction of New Generic Top-Level
Domains”, 8 August 2007 (approved 6 September 2007), available here: https://gnso.icann.org/en/issues/newgtlds/pdp-dec05-fr-parta-08aug07.htm#_Toc43798015.
41
ICANN Generic Names Supporting Organization, New gTLDs Summary – Principles, Recommendations &Implementation Guidelines, 22 October 2008, available here: https://gnso.icann.org/en/issues/new-gtlds.
42
IRP Final Declaration, pp. 27-28, paras 6.38-6.44.
39

24

70.

With respect to public recognition, the Expert found that public comments made withrespect to the Application indicate “that the charity sector is considered to exist
separately from other sectors of activity.” This Review Panel notes that publiccomments came from both private organizations, such as the Association of Charitable
Foundations, and public bodies, such as the Charity Commission for England andWales and the Office of the Scottish Charitable Regulator.43 The Expert also found that“[t]he existence in many jurisdictions, such as the UK, of regulators of the charity
sector is an indication that that sector is capable of delineation and is consideredpublicly to be different from others.”44

71.

This last finding also goes to the second factor, which refers to formal boundaries, andwhat persons or entities form the community. The common characteristics of thosecomprising the charity sector are, according to the IO: their “charitable aims,” “often
the status of a not for profit institution,” exemption “from a range of regulatory
requirements that apply to for-profit entities,” and funding “through donations or
public money.”45 The Expert considered these common characteristics to be so“obvious” as to not require “the support of specific evidence to be found as facts.” The
Review Panel notes that support for the conclusion can be found, in the underlying
record, in the specific references made by the IO to the public comments collected by
ICANN as part of the process.

72.

Regarding the fourth factor, which relates to global distribution, the Expert took noticeof the existence of regulators “in many jurisdictions,”46 and recognized that the charity
sector is global.47

43

Objection, paras 27, 29; all comments are available here:
https://gtldcomment.icann.org/comments/feedback/applicationcomment/viewcomments
44
Determination, para 121.
45
Objection, para 20.
46
Determination, para 121.
47
Determination, para 123.

25

73.

The Review Panel finds that the Expert was properly guided by those factors andreasonably came to its conclusion on the Community test.

4.4.2. The Targeting Test
74.

This Panel begins by noting that, in the reconsideration proceedings before the BGC,
the Applicant did not challenge the application of the Targeting test by the Expert,48
although it had argued before the Expert that the string itself had to define or denote a
clearly delineated community.49

75.

Although the string itself need not define the community invoked by the objector, “astrong association” between the community invoked and the string must be
established. This is also referred to as “targeting.” According to the IO, the charities
and charitable institutions comprising the charity sector are included in the target
defined by the Application.50

76.

The Expert appropriately made reference to the GNSO’s Implementation Guideline“P” to introduce the notion of implicit targeting relied upon by the IO. 51 This Panelagrees with the Expert that “[w]hilst that Implementation Guideline P addresses
specifically the Substantial Opposition test, its reference to the possibility of implicit
targeting must logically apply equally to the Targeting test… .”52 Implicit targeting
describes situations where an assumption of targeting is made or where there may be
confusion by users over the use of the relevant string.

48

IRP Final Declaration, pp. 27-28, paras 6.38-6.44.
Response, p. 8; Applicant’s Additional Submission, p. 3.
50
Objection, para 19.
51
GNSO’s Principles, Recommendations and Implementations Guidelines:
https://community.icann.org/display/DGNGSR/4.+New+gTLD+Principles%2C+Recommendations%2C+and+I
mplementation+Guidelines?preview=/49351666/49417096/New%20gTLD%20Principles_Reccs_Impl%20Guid
elines.pdf
52
Determination, para 128.
49

26

77.

The Application states that the applied-for gTLD is aimed at the “millions of persons
and organizations worldwide involved in philanthropy, humanitarian outreach, and the
benevolent care of those in need.”53 The Expert found in that statement an implicit
reference to the “charity sector,” which is the community invoked by the IO. The
Review Panel finds that the community invoked by the IO is clearly included in, and is
not an insignificant component of, the Application’s explicit target.

78.

The Expert found that a public association is strongly suggested by dictionary
definitions of the word “charity” as “charitable institution.” This suggests a public
association between the string .CHARITY and charitable institutions, which supports alegitimate belief that confusion may occur. The Expert explains that the Beijing
Advice constitutes further evidence that the public would associate the string withcharitable institutions. In the Advice, the sensitive nature of the string is directly andexplicitly linked “to the regulated nature of the charity sector and level of implied trustfrom consumers invoked by the string.” In this Panel’s view, this is quite reasonably
taken by the Expert to imply “the strong association” required by the Targeting test.

79.

The Applicant argues that its target is much broader than charitable institutions andthat the word “charity is a generic term with many other meanings.” This does notdetract, as the Expert quite reasonably finds, “from the strong association between“.Charity” and the charity sector or the implicit targeting of “.Charity” to that sector.”
The Applicant’s argument, as the Expert finds, only shows that the association
between the string and the charity sector is not exclusive; the IO’s burden was todemonstrate a strong association, not an exclusive one.

80.

This Panel finds that the Expert reasonably concluded that the IO’s burden, and thus
the Targeting test, had been met.

53

Application, s. 18A.

27

4.4.3. The Substantial Opposition Test
81.

This Panel begins by noting that, in the reconsideration proceedings before the BGC,
the Applicant did not challenge the application of the Substantial Opposition test by
the Expert.54

82.

The Guidebook indicates that substantial opposition is to be to the application (rather
than the applicant), and offers a list of factors for an expert to consider.55 The
Applicant urged the Expert to focus on the number of statements of opposition to theApplication. The Expert found, reasonably in this Panel’s view, that “a mere numericalmeaning for “substantial” would be wrong.

83.

The Expert, after listing the statements of opposition to the Application filed withICANN, acknowledged that the relative number of statements is not large and that theycame from the same, or from similar jurisdictions, a fact which militates against afinding of substantial opposition. The Expert then analysed the statements moreclosely to find that “[t]his small number of opposition statements comes from bodies
that are representative of a large number of members of the charity sector not only injurisdictions where the regulation of charitable activities is historically strong,developed and well-established, but also in the case of ACC [the Association of
Corporate Counsel, whose Not-for-profit Organizations Committee lends a voice to54

IRP Final Declaration, pp. 27-28, paras 6.38-6.44.
Again, the list is neither exhaustive nor determinative: “Number of expressions of opposition relative to thecomposition of the community; The representative nature of entities expressing opposition; Level of recognizedstature or weight among sources of opposition; Distribution or diversity among sources of expressions of
opposition, including: Regional, Subsectors of community, Leadership of community, Membership ofcommunity; Historical defense of the community in other contexts; and Costs incurred by objector in expressing
opposition, including other channels the objector may have used to convey opposition”.
55

28

over 1,400 in-house counsel practicing law in nonprofit institutions across the globe56],
worldwide.”57

84.

This Panel concludes that the Expert reasonably weighed the relevant factors to cometo his finding that the Substantial Opposition test had been met.

4.4.4. The Detriment Test
85.

Under this test an objector must demonstrate that the Application creates “a likelihoodof material detriment to the rights or legitimate interests of a significant portion of thecommunity to which the string may be explicitly or implicitly targeted.”58

86.

According to the Guidebook, the factors that “could be used” by an expert in coming
to a determination “include but are not limited to”:59







Nature and extent of damage to the reputation of the community represented by theobjector that would result from the applicant’s operation of the applied-for gTLD
string;Evidence that the applicant is not acting or does not intend to act in accordance with
the interests of the community or of users more widely, including evidence that theapplicant has not proposed or does not intend to institute effective security
protection for user interests;
Interference with the core activities of the community that would result from theapplicant’s operation of the applied-for gTLD string;
Dependence of the community represented by the objector on the DNS for its core
activities;

56

Determination, para 141, 143.
Determination, para 143.
58
Guidebook, s. 3.5.4.
59
Ibid.
57

29




87.

Nature and extent of concrete or economic damage to the community represented
by the objector that would result from the applicant’s operation of the applied-for
gTLD string; andLevel of certainty that alleged detrimental outcomes would occur.

After laying out the test and referring to the relevant factors, the Expert analysed the
public statements of opposition to the Application, which he found to be premised on“the importance of the global internet as a means of recognition and fund-raising forthe charity sector”.60 In the Expert’s view, the statements focus “on the need clearly to
distinguish charitable organization from enterprises in particular for-profit in publicgiving and fund-raising activities,”61 and they “emphasise the need for strictregistration eligibility criteria limited to persons regulated as charitable bodies or theirequivalent depending upon domestic law.”62

88.

The Expert then took the view that the public statements of opposition, which were
echoed by the IO, could not be ignored because:63“[T]hey point to an important characteristic of the targeted community(including its existence and its activities) that would be harmed if access to the“.Charity” string were not restricted to persons (whether incorporated entities,
unincorporated associations or entities, foundations or trusts) which canestablish that they are a charity or a not-for-profit enterprise with charitablepurposes.”89.

Up to this point in the Determination, the Review Panel takes no issue with theExpert’s reasoning and findings, which are very similar to those in the determinations
the Expert made in the consolidated cases, and certainly meet any test ofreasonableness. At this point, however, there is a bifurcation in the Expert’s treatmentof Corn Lake’s position and the position of the other two applicants, a bifurcation

60

Determination, para 149.
Determination, para 150.
62
Determination, para 151.
63
Determination, para 152.
6130

which ultimately leads to the different results mentioned at the beginning of thisReview Determination.

90.

The Overview provided at the beginning of this Review Determination explains thatthe case under review here was consolidated with two other cases: the SLR case, andthe EFL case. The SLR case was about the same string, .CHARITY; the EFL case wasabout .慈善, the Chinese Internationalized Domain Name for .CHARITY.

91.

The New gTLD applications in the three consolidated cases were initially similar inthat they were all framed as applications for an open registry, without the eligibility
restrictions that the IO thought necessary to protect against the likelihood of material
detriment. In all three cases, the applicants eventually changed their approach inresponse to objections or the Beijing Advice. The three applicants did so at different
times in the process, however, as follows.

92.

EFL, when it filed its response to the IO’s community objection, was already prepared
to change its approach and to commit to imposing appropriate eligibility restrictions.
EFL laid out its new approach in its response, and provided a new PIC Spec as anannex to its response. This was eventually found satisfactory by the Expert for the
purpose of dismissing the community objection.64

93.

SRL, for its part, was not yet prepared to change its approach and to commit toimposing appropriate eligibility restrictions when it filed its response. In its response,
SRL held on to the open-registry concept, without eligibility restrictions, deeming thatsuch restrictions were misplaced. In its additional submission of 6 September 2013,
however, SRL completely changed its approach. By then it had amended its PIC Spec
to include the expected registration restrictions. Like the original PIC Spec, the64

EFL Determination, para 129.

31

amended PIC Spec contained the following language: “We reserve the right to amendor change this PIC Spec once the details of the Program are finalized.”65 SRL’s new
position was eventually also found satisfactory by the Expert for the purpose of
dismissing the community objection.66

94.

The Applicant took the same approach as SLR in its Response, holding on to the openregistry concept, without eligibility restrictions, and deeming that such restrictions
were misplaced. However, unlike SRL, the Applicant did not change its central
position in its Additional Submission. Even there it maintained that the .CHARITY
string, which it acknowledged is sensitive, should be run under an open registry
principle. In its Additional Submission, however, the Applicant did state that, should
the Board adopt the GAC’s concerns about registration restrictions, then “Applicant ofcourse would, as it must, abide by that decision”.67 In its Additional Submission, Corn
Lake’s statement is bolstered by evidence of its capacity and experience with respect tothe preparation and submission of amended PIC Specs and the modification of registryagreements.

95.

The additional submissions filed on 6 September 2013 marked the end of theprocedural calendar informally set by the Expert for the exchange of submissions in
the three cases. Although there was no formal closing of the proceedings, thedeterminations were expected to be submitted in draft form to the ICC within 45 days
from the transmission of the file to the Expert, which took place on 2 August 2013.
The Expert submitted his draft determinations on 16 September 2013, within the 45day period.

96.

On 29 October 2013 ICANN formally announced its intention to adopt the Beijing
Advice and to impose eligibility restrictions that would apply to the .CHARITY string

65

Response, Annex 2, para 3.
SRL Determination, para 129.
67
Additional Submission, p. 8. See also pp. 1-2, 10.
66

32

and its Chinese equivalent. This announcement came in the form of a letter from the
Chair of the Board, Stephen Crocker, on behalf of the NGPC, to Heather Dryden, in
her capacity as Chair of the GAC. Attached to the letter was a document describing
how ICANN intended to implement the required safeguards through appropriate
language in the PIC Spec of the New gTLD Registry Agreement. As with all ICANN
documents, this was a public document.

97.

The Applicant wrote on 3 December 2013 to update the Expert about the adoption of
the Beijing Advice by ICANN and the Applicant’s consequent adaptation of its PICs,
as well as of the impact of this on the Objection.68 The Applicant concluded that the
Objection had thus become moot on this point (which, as the Applicant was to learn,
was the only one the Expert relied upon to distinguish this case from the other two
consolidated cases and to uphold the Objection). Nevertheless, by letter of 13
December 2013, 69 the Expert refused to admit into the record the new information
proffered by the Applicant, and then went on to uphold the Objection. The ICC issued
the Expert’s determination in each of the three cases on 9 January 2014.

98.

In the SRL and EFL determinations, after coming to the bifurcation point mentioned
earlier, the Expert turned to the eligibility policy provided in the additional submission
and the response respectively (an eligibility policy “which will be included in any
registration agreement entered into … with ICANN”) and concluded that these policies
responded “to the Detriment test concerns raised by the IO”. On that basis the Expert
dismissed the objection in both cases.70

99.

In the Determination under review, by contrast, the Expert noted that the Application“expressly avoids such a limitation and therefore the protection that the Expert Panel

68

Available at https://www.icann.org/resources/pages/14-3-2014-01-30-en, Attachment 5.
Available at https://www.icann.org/resources/pages/14-3-2014-01-30-en, Attachment 7.
70
EFL Determination, para 129; SRL Determination, para 129.
69

33

considers should exist,”71 leading to a conclusion of likelihood of detriment and thus to
the Objection being upheld against the Applicant. The Determination was thus
rendered without consideration of ICANN’s 29 October 2013 announcement
concerning the Beijing Advice, and, because of the Expert’s decision of 13 December
2013 to dismiss further submissions, without consideration of the Applicant’s
statement that it was relying on the announcement and modifying its PICs.

100.

The IRP Panel, which recommended the extension of the Review Procedure to theDetermination, took no position on the correctness of the Expert’s decision of
13 December 2013 dismissing further submissions in the matter under review.72 Thistask falls to the Review Panel.

101.

The Expert’s decision is in some respects understandable in light of procedural
considerations. Indeed, the process is designed to be quick and provides a window of,normally, 45 days for an expert to come to a decision. In this case, there was no formal
request by the Applicant, within the 45-day period, for leave to file additional
submissions and for an extension of time. Moreover, re-opening proceedings can lead
to abuse and the bane of endless proceedings. The Review Panel takes these
considerations very seriously. They are akin to the underlying reasons why theprinciple of res judicata is universally recognized, and why procedural justice is, in
key respects, as important as substantive justice.

102.

Nonetheless, the Review Panel finds that it was not reasonable for the Expert to shutout the crucial information he received from the Applicant and to go on to uphold the
Objection based on the likelihood of a detriment that at that point he should have
known could not materialize. The Expert’s procedural decision itself is notdeterminative of this Panel’s finding, however. Even if this Panel were to deem

71
72

Determination, para 153.
IRP Final Declaration, p. 58, para 8.59.

34

reasonable the Expert’s refusal to admit the further submissions, this Panel’s
conclusion about the outcome would be the same.

103.

This Panel’s conclusion would be the same because the fact of the 29 October 2013
ICANN announcement was a matter of public record from the day it was made. Even
if the 3 December 2013 “update” from the Applicant were deemed, for the purpose of
discussion, to have been properly rejected by the Expert, it still establishes for thisPanel that the Expert was aware of the public announcement of ICANN’s decision.
This awareness, combined with the statement already on record that Corn Lake “ofcourse would, as it must, abide by that decision,” made unreasonable the finding of alikelihood of detriment. The Applicant had already stated it would abide by ICANN’s
registration requirements if imposed; the fact that such requirements were going to be
imposed was now in the public record; and both parties as well as the Expert were
aware of that fact. In that situation, one could not reasonably distinguish the Corn Lake
position from that of the other two applicants for the purpose of the Detriment test. In
all three cases, the imposition of the registration restrictions by ICANN removed thelikelihood of detriment.

104.

The Review Panel carefully weighed several considerations before coming to its
determination.

105.

The Expert might for example have felt unable to call back a determination he hadalready submitted to the ICC. However, during the period between 16 September 2013,
when the Expert submitted his draft determinations, and 9 January 2014, when thedeterminations were issued by the ICC, the determinations were not final. They were
undergoing scrutiny as draft determinations under the ICC process. This means thatthey could be modified, based on an exchange between the DRSP and the Expert, aspart of that process. During that period of time, subject to the DRSP’s grant of a timeextension, it was possible for the Expert to re-open the proceedings, which
incidentally, and consistently with the Procedure, had not been formally closed, even35

though all of the steps contemplated in the Procedure and the procedural calendar had
been taken. Re-opening the proceedings would also have been consistent with ICC’s
email of 13 December 2013 reserving to the Expert the decision whether to admit
further submissions by the parties.73

106.

Another consideration that gave pause to the Review Panel is that ICANN’s
29 October 2013 letter was not equivalent to the adoption of the Beijing Advice by the
Board. This formally took place on 5 February 2014, by resolution of the Board. Until
that moment there could be no absolute certainty that the Board would indeed pass thenecessary resolution. The announcement, however, came from the Chair of the Board,and the nature and publicity of the New gTLD process were such that Board adoptionof the policy was a quasi-certainty. The announcement, at a minimum, was clearly
intended by ICANN to be relied upon. The possibility that the announcement might
not be followed through does not seem to have been seriously raised in any of the
documents the Review Panel considered. Moreover, the Applicant made it clear to theExpert that it was indeed relying on the announcement.

107.

A further consideration is that the Guidebook actually refers to the Applicant’s “intent”
for the purpose of the detriment analysis. Among the factors that can be weighed in theanalysis, one finds this: “Evidence that the applicant is not acting or does not intend toact in accordance with the interests of the community or of users more widely,
including evidence that the applicant has not proposed or does not intend to instituteeffective security protection for user interests.” Looking at the three Applications in
the consolidated cases, it is apparent that none of the applicants initially intended
anything but an open registry. There was evidence in each of the applications that there
was no intent to act in accordance with the interests of the community as understoodby the Expert. This situation evolved differently for each of the applicants during theprocess, as outlined earlier. Ultimately, however, the “intent” which, according to the73

Available at https://www.icann.org/resources/pages/14-3-2014-01-30-en, Attachment 7.

36

Guidebook, could guide experts in assessing the likelihood of material detriment washere entirely taken over by the quasi-certainty that registration restrictions would be
imposed irrespective of the Applicant’s original “intent”. As the IRP Panelsuggestively put it, the ICANN announcement had a “levelling effect,”74 which, in thisPanel’s view, made it unreasonable for the Expert to treat the case under review
differently from the other two consolidated cases and to uphold the Objection.

108.

For the foregoing reasons, the Review Panel finds that the Expert’s conclusion
concerning the Detriment test of the Community Objection was unreasonable. The“concerns regarding the likelihood of a detriment to the rights or legitimate interests ofthe charity community, to users, and to the general public” had satisfactorily beenaddressed by ICANN’s decision to impose registration restrictions.

109.

The Expert’s conclusion concerning the Detriment test was the only ground for
upholding the Community Objection in the case under review. In this Final Review
Procedure, the Panel finds that the IO had not met the Detriment test and that, as aresult, the Community Objection must be dismissed. The disposition of theDetermination is replaced accordingly.

5. FINAL DETERMINATION
110.

Althoughreasonable

in

all

other

respects,

theDetermination

in

case

EXP/395/ICANN/12 was unreasonable in finding that the Detriment test of theCommunity Objection had been met.

111.

The Determination in case EXP/395/ICANN/12 is reversed, and is replaced with thisFinal Expert Determination.

74

IRP Declaration, p.58, para 8-58; p. 63, paras 8.72, 8.73.

37

112.

The Independent Objector’s Community Objection is dismissed and Corn Lake, LLC,
is the prevailing party.

113.

Pursuant to the Request, ICANN bears all the costs of these review proceedings.

Place of the proceedings: Paris, France

Date: 12 December 2017

Mrs Deva Villanúa

Prof. Luca G. Radicati di Brozolo

Co-expert

Co-expert

Prof. Fabien Gélinas
Chair38