THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/414/ICANN/31

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(FRANCE)vs/MEDISTRY, 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.

INTERNATIONAL CHAMBER OF COMMERCE
INTERNATIONAL CENTRE FOR EXPERTISE
CASE NO. EXP/414/ICANN/31

betweenProf. Alain Pellet, Independent Objector
ObjectorandMedistry, LLC
ApplicantUnder ICANN’s New gTLD Dispute Resolution Procedure and theRules for Expertise of the International Chamber of Commerce
as supplemented by the ICC Practice Note of March 2012

Re: Limited Public Interest Objection concerning Application 1-907-38758 (.MED)

Expert Panel:Prof. Fabien Gélinas (Chair)
Mr. John Gaffney (Co-Expert)
Prof. Guglielmo Verdirame (Co-Expert)

TABLE OF CONTENTS

1. INTRODUCTION................................................................................................................. 3
2. AGREEMENT CONCERNING THE PROCEDURE ...................................................... 5
3. THE PARTIES AND THEIR COUNSEL .......................................................................... 6
3.1. The Independent Objector ................................................................................................ 6
3.2. The Applicant ..................................................................................................................... 7

4. THE EXPERT PANEL ........................................................................................................ 8
5. HISTORY OF THE PROCEEDINGS ................................................................................ 9
6. SUMMARY OF THE PARTIES’ RESPECTIVE POSITIONS .................................... 13
6.1. The Independent Objector’s Objection.......................................................................... 13
6.2. The Applicant’s Response ............................................................................................... 16
6.3. The Independent Objector’s Additional Statement ...................................................... 19
6.4. The Applicant’s Reply to the Independent Objector’s Additional Statement ............ 21

7. ANALYSIS .......................................................................................................................... 22
7.1. The “Quick Look” Procedure ......................................................................................... 23
7.2. The Independent Objector’s Standing ........................................................................... 24
7.3. The Admissibility of Certain Documents ....................................................................... 25
7.4. The Standards of Adjudication and Legal Principles ................................................... 26
7.5. The Merits of the Objection ............................................................................................ 31
7.6. The Alternative Remedy .................................................................................................. 35

8. DETERMINATION ........................................................................................................... 36

2

1. INTRODUCTION
1.

The Internet Corporation for Assigned Names and Numbers (“ICANN”) has launcheda program for the introduction of new generic Top-Level Domain Names (“gTLDs”).
Applicants may apply for new gTLDs, in accordance with terms and conditions set by
ICANN, notably in the gTLD Applicant Guidebook (the “Guidebook”).1

2.

The Guidebook contains, as an Attachment to Module 3, a New gTLD Dispute
Resolution Procedure (the “Procedure”). The Procedure governs the resolution of
disputes between an entity that applies for a new gTLD (an applicant) and an entity
objecting to the application (an objector).

3.

Dispute resolution proceedings are administered by a Dispute Resolution Service
Provider (a “DRSP”) in accordance with the Procedure and the applicable DRSP rules.
Four kinds of objections can be brought under the Guidebook: String Confusion,
Existing Legal Rights, Limited Public Interest, and Community.

The DRSP

responsible for Limited Public Interest objections is the International Centre forExpertise of the International Chamber of Commerce (“ICC”), and the applicable
DRSP rules are the Rules for Expertise of the ICC (the “Rules”), as supplemented by
the ICC. In March 2012, the ICC supplemented the Rules by issuing a Practice Noteon the Administration of Cases under the New gTLD Dispute Resolution Procedure(the “ICC Practice Note”).

1

gTLD Applicant Guidebook, v. 2012-06-04, Module 3, available at http://newgtlds.icann.org/en/applicants/agb[hereinafter Guidebook].

3

4.

According to section 3.2.5 of the Guidebook, the Independent Objector may file aformal objection to a gTLD application. The Independent Objector’s role is to act not
on behalf of any particular persons or entities, but in the best interests of the public
who use the global Internet. Neither ICANN staff nor the ICANN Board of Directors
has authority to direct or require the Independent Objector to file or not to file any
particular objection. If the Independent Objector determines that an objection should
be filed, he will initiate and file the objection in the public interest.

5.

The Independent Objector may file objections against “highly objectionable” gTLD
applications to which no objection has been filed. The Independent Objector is limited
to filing two types of objections: (1) Limited Public Interest objections and (2)Community objections.

The Independent Objector is granted standing to fileobjections on these enumerated grounds, notwithstanding the regular standing
requirements imposed on others for such objections.

6.

In light of the public interest goal noted above, the Independent Objector shall not
object to an application unless at least one comment in opposition to the application ismade in the public sphere.

7.

These proceedings arise out of a Limited Public Interest objection (the “Objection”) to
the application filed by Medistry, LLC (“Medistry”) for the .MED gTLD (the“Application”).

8.

The Objection to the Application was filed by the Independent Objector on 13 March
2013.

4

2. AGREEMENT CONCERNING THE PROCEDURE
9.

As stated in Article 1(d) of the Procedure, by applying for a new gTLD under the
Guidebook, an applicant accepts the Procedure and the relevant DRSP rules governing
possible objections.

Similarly, by filing an objection, an objector accepts theProcedure and the applicable rules.

10.

Pursuant to Article 8 of the ICC Practice Note, by accepting the process defined in theProcedure, the “parties are deemed to have agreed that the expert determination shallbe binding upon the parties” as provided in Article 12(3) of the Rules.

11.

As provided in Article 4(d) of the Procedure, “the place of the proceedings, if relevant,shall be the location of the DRSP that is administering the proceedings”. In this casethis place is Paris, France.

12.

As provided in Article 5(a) of the Procedure, the language of the submissions andproceedings is English.

13.

The Expert Determination Procedure to which the parties have agreed to submit thisdispute provides a specific procedural framework that is different from typical legal
proceedings. It involves brief submissions (which are subject to strict word limits) andan expedited schedule. Hence, while the important and complex matters at issue havereceived serious consideration by both the parties and the Panel within that framework,
the Panel has endeavored to apply a principle of economy to the preparation of thisdocument.

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3. THE PARTIES AND THEIR COUNSEL
3.1. The Independent Objector

14.

Professor Alain Pellet is the Independent Objector selected by ICANN pursuant tosection 3.2.5 of the Guidebook.2

15.

The contact information for the Independent Objector is as follows:

Prof. Alain Pellet, Independent Objector
16, Avenue Alphonse de Neuville92380 Garches, France
Email: courriel@alainpellet.eu
contact@independent-objector-newgtlds.org

16.

The Independent Objector is represented in these proceedings by:

Ms. Héloïse Bajer-Pellet
15, Rue de la Banque
75002 Paris, France
Email: avocat@bajer.fr

Mr. Daniel Müller
20, Avenue du Général de Gaulle
78290 Croissy sur Seine, France
Email: mail@muelerdaniel.eu

2

See ICANN Press Release of 14 May 2012, available at
http://www.icann.org/en/news/announcements/announcement-14may12-en.htm

6Mr. Phon van den Biesen
De Groene Bocht, Keizersgracht 253
1016 EB Amsterdam, The Netherlands
Email: phonvandenbiesen@vdbkadvocaten.eu

Mr. Sam Wordsworth
24 Lincoln’s Inn Fields
London, WC2A 3EG, United Kingdom
Email: SWordsworth@essexcourt.net

3.2. The Applicant

17.

Medistry, LLC (“Medistry” or the “Applicant”) was created by the Cleveland Clinic toapply for, obtain and operate the .MED gTLD under its guidance and direction. The
Cleveland Clinic is an international medical center headquarted in Cleveland Ohiowith the mission to integrate clinical and hospital care with research and education.

18.

The contact information for the Applicant is as follows:

Medistry, LLC
Mr. Brian David Johnson
3029 Prospect Avenue
Cleveland Ohio 44115, United States
Email: bdj@secondgen.com

19.

The Applicant is represented in these proceedings by:

The Cleveland Clinic Foundation
Mr. Kevin Michael Mooney, Esq., Counsel
73050 Science Park Drive – AC321
Beachwood, Ohio 44122, United States
Email: mooneyk@ccf.org

The Cleveland Clinic Foundation
Mr. David W. Rowan, Esq., Chief Legal Officer
9500 Euclid Avenue
Cleveland, Ohio 44195, United States

4. THE EXPERT PANEL
20.

According to Article 13(b)(iii) of the Procedure, proceedings involving a Limited
Public Interest objection are referred to a panel of three experts (the “Expert Panel” or“Panel”), recognized as eminent jurists of international reputation, one of whom shallbe designated as the Chair. The Chair shall be of a nationality different from thenationalities of the Applicant and of the Independent Objector. Pursuant to Article 3 ofAppendix 1 to the Rules, experts are appointed by the Chairman of the Standing
Committee of the ICC Centre for Expertise.

21.

On 12, 13 and 14 June 2013, each of the experts completed and filed a Declaration of
Acceptance and Availability and Statement of Impartiality and Independence, in
accordance with Article 3 of the Rules.

22.

On 21 June 2013, the Chairman of the Standing Committee of the ICC International
Centre for Expertise appointed the Panel pursuant to Article 3(3) of Appendix I to theRules. Professor Fabien Gélinas, a Canadian national, was appointed as the Chair of
the Panel and Mr. John Gaffney and Professor Guglielmo Verdirame were appointed
as Co-Experts of the Panel in accordance with Article 13(b)(iii) of the Procedure. The
experts’ contact details are as follows:8

Prof. Fabien Gélinas
McGill University, Faculty of Law
3644 Peel Street,Montreal (Quebec), H3A 1W9, Canada
Email: fabien.gelinas@mcgill.ca

Mr. John Gaffney
25 rue de Chazelles
Paris 75017, France
Email: jp_gaffney@yahoo.com

Prof. Guglielmo Verdirame
20 Essex Street
London WC2R 3AL, United Kingdom
Email: gverdirame@20essexst.com

23.

The parties were notified of the appointment of the Panel on 24 June 2013 and asked to
pay an advance on costs before transmission of the file to the Panel.

24.

After payment of the advance by both parties, the Panel received the file on 1 August
2013 and was deemed fully constituted on that date for the purpose of the Procedure.

5. HISTORY OF THE PROCEEDINGS
25.

This Objection relates to Medistry’s application to register the string .MED. The
Application was posted on ICANN’s website on 13 June 2012 and given ID Number91-907-38758 in the ICANN system.3 The Application passed the initial evaluation
process in accordance with subsection 1.1.2.5 of Module 1 of the Guidebook, which is
independent from the dispute resolution process laid out in the Procedure.4

26.

On 12 March 2013, the Independent Objector filed the Objection to the Application
with the DRSP. A copy of the Objection was transmitted to the Applicant on 13
March 2013. The requisite filling fee had been paid to the DRSP when the Objection
was filed, following Article 8(c) of the Procedure and Article 1 of Appendix III to theRules.

27.

Pursuant to Article 9 of the Procedure, the DRSP conducted an administrative reviewof the Objection for compliance with its Rules and with Articles 5-8 of the Procedure(Language, Communications and Time Limits, Filing of the Objection, and Content of
the Objection). On 2 April 2013, the DRSP notified the parties that the Objection wascompliant. On 12 April 2013, ICANN made a dispute announcement under Article 10of the Procedure, listing the objections that had passed administrative review,
including this Objection.

28.

On 12 April 2013, the DRSP sought the comments of the parties on the possible
consolidation of this case with two other cases in which the string .MED was at issue,
as contemplated by Article 12 of the Procedure. On 19 April 2013, the DRSP notified
the parties that the cases would not be consolidated.

29.

On 22 May 2013, the Applicant filed a Response to the Objection (the “Response”). A
copy of the Response was transmitted to the Independent Objector and his
Representatives on the same day. Pursuant to Article 11(f) of the Procedure, theApplicant paid the requisite filing fee to the ICC on the same day.

3
4

https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails/216.
http://newgtlds.icann.org/sites/default/files/ier/ciasie0hjec3lamxawrle7ia/ie-1-907-38758-en.pdf.

10

30.

On 21 June 2013, the Chairman of the Standing Committee of the ICC International
Centre for Expertise appointed the Expert Panel pursuant to Article 13 of theProcedure and Article 9(5)(d) of the Rules.

31.

On 24 June 2013, the DRSP informed the parties of the appointment of the Expert
Panel and of the estimate of total costs in this matter. The parties were informed that
the Panel would not be deemed fully constituted and the matter would not proceed
until each of the parties had made advance payment of the estimated costs.

32.

On 1 August 2013, the DRSP informed the parties of the receipt of the necessary
advance payment and transferred the file to the Panel. The Panel received the file andwas deemed fully constituted on that date for the purpose of the Procedure.

33.

On 2 August 2013, the Independent Objector requested leave from the Panel to file anadditional written statement to address issues that were raised in the Applicant’s
Response. On the same date, the Applicant responded to the Independent Objector’srequest.

34.

On 5 August 2013, the Expert Panel wrote to the parties asking the Applicant tocomment on the Independent Objector’s request and seeking the parties’ observations
on the conduct of the proceedings generally and, in the event the Independent
Objector’s request were to be granted, the appropriate length and timing of any
additional round of submissions.

35.

On 9 August 2013, the Independent Objector and the Applicant each provided
observations.

36.

On 12 August 2013, the Expert Panel notified the parties that it had conducted the“quick look procedure” in accordance with subsection 3.2.2.3 of Module 3 of the11

Guidebook and had not found the Objection to be manifestly unfounded or an abuse of
the right to object such that it should be summarily dismissed.

37.

On the same day, in accordance with Article 17 of the Procedure, the Expert Panel
granted the Independent Objector leave to submit an additional written statement
within ten days and gave the Applicant the opportunity to reply within ten days of the
Independent Objector’s submission.

38.

The Independent Objector submitted an additional statement on 22 August 2013 andthe Applicant a reply on 30 August 2013. These submissions addressed, among otherthings, a preliminary issue raised by the Independent Objector concerning theadmissibility of certain documents annexed to the Response.

39.

As required by Article 5(a) of the Procedure, submissions and communications weremade in English. In accordance with Article 6(a) of the Procedure, all communicationsin the proceedings were submitted electronically.

40.

On 3 September 2013, the Panel notified the parties that it was moving into adeliberative phase. The Panel also notified the parties that the issue raised by the
Independent Objector concerning the admissibility of certain documents would be
addressed in the Determination. The Panel then considered the entire record, except
for two documents, as noted later, and proceeded with the preparation of a draft Expert
Determination.

41.

On 4 September and on 3 October 2013, the DRSP granted the Panel extensions for thesubmission of its draft Expert Determination to 5 October and 12 October 2013,
respectively.

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42.

On 12 October 2013, the Expert Determination was submitted in draft form to the
DRSP for scrutiny in accordance with Article 12(6) of the Rules and Article 21(b) of
the Procedure.

6. SUMMARY OF THE PARTIES’ RESPECTIVE POSITIONS43.

The Objection considered in these proceedings is a Limited Public Interest objection.
The Guidebook provides the applicable standards, or principles of adjudication, for a
Limited Public Interest objection. In terms of standing, since the Independent Objector
acts solely in the best interest of the public who use the global Internet, he shall not
object to an application unless at least one comment in opposition to the application
has been made in the public sphere. On the merits, the Independent Objector must
demonstrate that the applied-for gTLD string is contrary to generally accepted legal
norms of morality and public order that are recognized under principles ofinternational law. The parties’ respective positions concerning the application of theseprinciples are summarized below.

6.1. The Independent Objector’s Objection

44.

The Independent Objector first argues that he has standing to bring this Objection
because, as required by the Guidebook, at least one comment in opposition to theApplication was made in the public sphere.

In fact, various non-governmentalorganizations have submitted Public Comments with respect to all four of the
Applications that have been submitted to ICANN for the .MED gTLD. Many of thesecomments express great concern about the reliability and trustworthiness of a .MED
gTLD that is run by a private enterprise. Although several of these Comments were
submitted under the heading of a Community objection, the Independent Objector has
13taken notice of the contents thereof in his decision to submit the present Objection
since the substance of the objections expressed often refers to “public interest” and“public health” as rationale for these concerns.

Given the status of health as afundamental human right and of the medical sector as a constitutive element thereof,
the Independent Objector argues, these concerns fall within the parameters set for a
Limited Public Interest objection.

45.

Concerning the merits, the Independent Objector’s position is that the applied-for
gTLD string would be contrary to specific principles of international law as reflected
in relevant international instruments of law.

46.

The Independent Objector alleges that “med” as an abbreviation for “medical” and“medicine”, as well as similar terms in multiple languages, is inextricably connected tohealth, since it refers to the goods, services and facilities that are necessary for theeffective fulfillment of the right to health. Therefore, the Independent Objector statesthat his appreciation of a .MED gTLD is directly linked to his appreciation of the very
concept of health.

47.

The Independent Objector submits that health was recognized as a fundamental humanright in international law for the first time in 1948, in the Universal Declaration of
Human Rights. Since then, several instruments of international law have confirmed
the human rights status of health. The Independent Objector argues that the promotion
and protection of international health is inherent in the due respect of generally
accepted legal norms of public order that are recognized under fundamental principles
of international law.

48.

The right to health was defined by the United Nations Committee on Economic, Social
and Cultural Rights (the “Committee”) as “a right to the enjoyment of a variety offacilities, goods, services and conditions necessary for the realization of the highest
attainable standard of health.”

The Committee lists health care as the very first14

element covered by the right to health while interpreting the right to health as not only
extending to health care but also to the underlying determinants including access tohealth-related education and information. The Independent Objector also refers to thecase law of regional human rights courts that confirm that access to information is an
essential element of specific human rights.

49.

The Independent Objector is of the view that any entity applying for a .MED gTLD
should demonstrate awareness of its duty to see to it that this gTLD is organized, set up
and managed in such a way that the right to health, with all of the implications
discussed above, including the necessity of reliability and trustworthiness of medical
information, is fully respected and, consequently, should demonstrate that this duty
will be effectively and continuously implemented. In addition, the Applicant should
demonstrate how, given the public interest at stake, the policies and decision-makingof the Applicant will be properly connected to the public authorities, national as wellas international, that are under a legal obligation to respect, protect and fulfill the rightto health. In the view of the Independent Objector, these are requirements that are
fully justified given the specific principles of international law as reflected in therelevant international instruments of law discussed above.

50.

The Application shows that the applied-for gTLD is intended to become a trusted
source for medical-related information, that the eligibility for domain operating will be
restricted, that there is no clear view on future developments and related policies andthat the stated goal is to operate the gTLD in a professional and commerciallyreasonable manner. It is also clear that all relevant decisions will be made by the
Applicant and Cleveland Clinic and that all these stated positions, rules and policies
may be changed in the Applicant’s and Cleveland Clinic’s sole discretion. In the viewof the Independent Objector, the Application does not provide for any views on theinternational nature of this undertaking, while for a gTLD the world at large seems tobe the natural environment, as is confirmed by the Applicant.

15

51.

The Independent Objector submits that, more importantly, the Applicant does notdemonstrate awareness of the fact that “med”, referring to medical services and to
medical-related information as essential elements, is not only a “term” but that it also
represents a fundamental right, indissociable from the right to health, which involves
extensive obligations for national and international public authorities across the globe
as well as for citizens and private enterprises. Providing medical related information
on a worldwide basis might interfere with efforts of public authorities to fulfill their
obligations, while for developing countries “there is a growing concern that anunrestricted health gTLD will bypass regulatory controls”. The Application is silent
on these aspects of fundamental importance. The “Public Interest Commitments” filedby the Applicant on 6 March 2013 do not change this picture. They merely reiterateelements already contained in the Application.

52.

For these reasons the Independent Objector requests the Expert Panel to hold that the
Objection is valid and to uphold the Objection against the Application.

In thealternative, the Independent Objector requests the Expert Panel to hold that the
Objection is valid as long as the Applicant has not provided solutions for the serious
objections raised above.

53.

In addition, the Independent Objector requests that his advance payment of costs be
refunded in accordance with Article 14(e) of the Procedure.

6.2. The Applicant’s Response

54.

The Applicant’s position is that the Objection must be dismissed.

55.

The mission stated in the Application for the .MED gTLD is to serve as a trusted
source on the Internet for medical-related information, providing people greater choicefor obtaining such information, allowing the sharing of trusted information by multiple
16

sectors of the healthcare industry, and fostering collaboration, in the public interest andin a new online environment, between producers and users of medical-related
information.

56.

The Applicant submits that the Objection must be considered in light of the scope ofboth the role of the Independent Objector and the substantive rules for a Limited
Public Interest objection, which are far more limited than the Independent Objector has
portrayed them.

In particular, the Limited Public Interest standards cover only

objectionable strings, not the presumed content within a domain. The Independent
Objector is authorized under the Guidebook to object to “highly objectionable” strings.
The possibility of objectionable content is insufficient for an objection if the string
itself is not objectionable. The Applicant emphasizes that .MED is not contrary tointernational law because it “might” interfere with states’ obligations. Not only is it
unlikely, given the Cleveland Clinic’s reputation for reliability and its correspondingplans for .MED, that the information will be unreliable, but the mere possibility is notenough justification to restrict the almost-universally recognized right to freedom of
expression.

57.

The Applicant submits that the right to health is more limited than portrayed in the
Objection. First, although the scope and content of the right, and who it obligates, arefar from clear, it is clear that it does not prevent anyone from simply sharing healthinformation, in a gTLD or otherwise, and that non-state actors have no directinternational obligations related to health. Second, international law does not limit
private actions just because they interfere with state obligations, and even if it did,private dissemination of health information does not interfere with any state
obligations.

Third, international law affirmatively protects, and even encourages,

private creation and dissemination of health-related information.

Finally, evenassuming the right to health could be impaired by a health-related gTLD, such a
concern does not rise to the level of a threat to public order, and, moreover, isinapplicable to the restricted .MED gTLD proposed by Medistry.
17

58.

As the Independent Objector notes, access to reliable and trustworthy information is an
essential element of the right to health. The Applicant believes that since .MED will
only allow information posted by vetted, reliable sources, and will provide increased
global access to accurate, reliable information, it will actually promote the right tohealth. As provided in the Public Interest Commitments (PICs) submitted in relation
to the .MED Application, any eventual registry agreement for .MED will containspecific contract commitments to maintaining the gTLD as a trusted space withreliable information and to giving the Cleveland Clinic sole discretion to approve or
reject all potential registrants.

This demonstrates the Applicant’s commitment tomaintaining the quality of the gTLD, to subjecting itself to liability in the event that its
commitment is not fulfilled, as well as its willingness to respond to concerns expressedby governments.

59.

The Applicant further submits that the Independent Objector cannot meet his burden
because no principle of international law prevents private parties from providing
health-related information. The Applicant is a non-state actor and the right to health asreflected in relevant instruments of law is limited and directed to state actors.
Furthermore, to the extent customary international law recognizes a right to health, it isvery limited.

International law imposes no direct obligations on non-state actors

regarding provision of health-related information. Finally, potential violations are notcontrary to international law. Indeed, the assertion that .MED might conflict with theright to health is insufficient.

60.

Besides, the Applicant states that .MED is not contrary to any generally accepted legal
norm of morality and public order. .MED poses no threat to either public or individual
health, and certainly poses no threat serious enough to qualify as a question of publicorder. Accordingly, even if .MED is somehow contrary to a specific principle ofinternational law as reflected in some international instrument, which the Applicant
contends it is not, .MED is not contrary to any norm of public order and therefore the
Objection must fail.
18

61.

The Applicant states that there is no generally accepted norm limiting private actions
that interfere or might interfere with state obligations. Provision of health-related
information by private parties does not interfere with state obligations to protect theright to health. Whether or not .MED exists, states have the right to regulate certain
health-related information. Regulations applicable to existing information sources,
including online information, will apply to .MED.

62.

The Applicant goes further by stating that international law actually protects the rightof private parties to provide health-related information – i.e., the Limited Public
Interest objection is explicitly limited by the right to freedom of expression.
Furthermore, the Applicant argues that preventing dissemination of health-related
information to protect the right to health is not proportional, since the violation is only
potential.

63.

The Applicant submits that the Objection should be dismissed as it fails to establish a
specific right to health, reflected in any binding international instrument, regarding
private dissemination of health information; fails to establish any direct obligation on
private actors to respect the right to health; and fails to demonstrate that .MED iscontrary to any specific, generally accepted principles of international law reflected ininternational instruments. It is instead both protected by the right to freedom of
expression and consistent with the right to health and the goal of increasing access totrustworthy, reliable health information.

6.3. The Independent Objector’s Additional Statement64.

The Independent Objector raises a preliminary issue concerning the length of the
Response. According to the Procedure, the Objection and the Response are each
limited to 5,000 words or 20 pages, whichever is less, excluding attachments. The
Independent Objector submits that the substantive part of the Response, including the19footnotes, counts well over 6,600 words; without the footnotes, the Response remains
within the 5,000 words limit. However, among the Annexes (2 and 3) submitted by
the Applicant there are two expert reports that may be taken as extensions or
expansions of the Applicant’s Response, bringing the latter to a page number well inexcess of the limit imposed by the Procedure.

65.

The Independent Objector is of the opinion that the only way to remedy this violationof the Procedure is to have Annexes 2 and 3 removed from the file as inadmissible.

66.

The Independent Objector therefore requests that Annexes 2 and 3 be declared
inadmissible, that the Applicant be ordered to delete these Annexes from the file andthat any reference to them in the text of the Applicant’s Response be ignored.

67.

Reacting to the substance of the Applicant’s Response, the Independent Objector
contends that he did not act outside his mandate as alleged by the Applicant. Limited
Public Interest objections are not exclusively reserved for objections holding that thestring, as such, would be objectionable.

In this case, the subject-matter of the

Objection is not the text of the string “.MED” but rather its intended use, and inparticular, its confiscation for purely commercial purposes which is contrary to generalprinciples of international law for morality and public order and likely to cause
harmful consequences to the public. From the definition provided in the Guidebook,the Independent Objector’s position is not that the word, or better the abbreviation“med”, would be objectionable per se but that the Application does not guarantee its
use in full respect for these general principles.
68.

Concerning the Applicant’s suggestion that the Independent Objector infringes on its,
and the public’s, right to free speech, the Independent Objector recalls that the conceptof freedom of expression is not free of any limits and carries special duties andresponsibilities. The concept of raising Limited Public Interest objections, and for thatmatter all objections envisaged by the Guidebook, implies that these limits may lead tothe rejection of certain applied-for strings, as it is the case for this particular gTLD.
20

69.

The Independent Objector refers to the recent Resolution adopted by the Sixty-sixth
World Health Assembly on 27 May 2013 on “eHealth standardization andinteroperability” as providing a confirmation of his approach. In this Resolution, theWorld Health Assembly requests its Director-General “to convey to the appropriate
bodies, including the ICANN Governmental Advisory Committee and ICANN
constituencies, the need for health-related global top-level domain names in all
languages, including “.HEALTH”, to be consistent with global public healthobjectives”.

70.

The Independent Objector submits that the Application does not meet the standards
that have to be applied to a highly sensitive gTLD and that the launch of this appliedfor .MED gTLD would, indeed, be contrary to specific principles of international law
as reflected in relevant international instruments of law.

6.4. The Applicant’s Reply to the Independent Objector’s Additional Statement

71.

The Applicant maintains that the Independent Objector is wrong in arguing that it
exceeded permitted length limit through the use of footnotes and inclusion of expert
reports. According to the Procedure and the Guidebook, attachments are excluded
from the length limitation. Although the Rules are silent on the inclusion of footnotes,
the DRSP expressly directed that neither table of contents nor footnotes will counttowards the 5000-word limit and the DRSP moreover confirmed that the Response wascompliant with Article 11.

Furthermore, every significant element of Medistry’s

analysis was presented within the allowed length limit; the expert reports simply
provide additional background on the relevant principles applicable to a controversial
and unsettled aspect of international law. It is common to provide expert opinions on
the scope of relevant international law and justice demands a thorough analysis of
relevant international law principles.

21

72.

On the merits, the Applicant submits that the .MED gTLD will be restricted totrustworthy sources of information; the Cleveland Clinic possesses the requisite
expertise and incentives to vet sources of information; and the strategy for operating
the gTLD includes review of any complaints by the Cleveland Clinic for quality
assurance.

73.

Concerning the World Health Assembly Resolution quoted by the Independent
Objector, the Applicant argues that not only is such a resolution not binding, but its
very general exhortation “that health-related gTLDs should “be consistent with global
public health objectives” does not call for prohibiting such gTLDs, or even imposing
the Independent Objector’s suggested requirement of connection with publicauthorities and non-commercial purpose.

74.

The Independent Objector has not proven, and cannot prove, that international law
would prevent a private party from disseminating health-related information, even if
such actions “might” interfere with states’ obligations. .MED is not contrary to any
principles of international law, is consistent with the goal of promoting health and isprotected by the right to free expression.

7. ANALYSIS
75.

In the following section the standards of adjudication and relevant legal principles for a
Limited Public Interest objection are discussed in detail and applied to the facts of thecase. In applying the standards the Panel is mindful that the Independent Objector
bears the burden of proof in respect of both standing and merits.5 If he has standing,
the Independent Objector must show that the applied-for gTLD string is contrary to

5

Guidebook, s. 3.5; Procedure, art. 20(c).

22generally accepted legal norms of morality and public order that are recognized underprinciples of international law.

76.

It should be noted that the Expert Panel comes to this Determination applying a
principle of judicial economy arising out of the nature of these proceedings, which
involve brief submissions (which are subject to strict word limits) and an expeditedschedule for their disposal. Hence, while the issues raised are complex and havereceived serious consideration by both the parties and the Panel, the Panel’s
determination will be correspondingly brief.

7.1. The “Quick Look” Procedure

77.

Subsection 3.2.2.3 of the Guidebook provides that anyone may file a Limited Public
Interest objection. Due to this inclusive standing base, however, objectors are subject
to a “quick look” procedure designed to identify and eliminate frivolous or abusive
objections. An objection found to be manifestly unfounded or an abuse of the right toobject may be dismissed at any time.

78.

The quick look was the Panel’s first task after its appointment by the DRSP and
involved an initial review on the merits of the Objection in the light of therequirements of subsection 3.2.2.3 of the Guidebook.

A Limited Public Interest

objection would be manifestly unfounded if it did not fall within one of the categories
defined as the grounds for such an objection at section 3.5.3 of the Guidebook. A
Limited Public Interest objection may also be an abuse of the right to object. An
objection may be framed to fall within one of the accepted categories for Limited
Public Interest objections, but other facts may clearly show that the objection is
abusive.

23

79.

On 13 August 2013, the Expert Panel informed the parties that it had conducted the“quick look” procedure contemplated in subsection 3.2.2.3 of the Guidebook and had
not found the Objection to be manifestly unfounded or an abuse of the right to object
such that it should be summarily dismissed.

7.2. The Independent Objector’s Standing

80.

Section 3.2.5 of the Guidebook provides that a formal objection to a gTLD application
may be filed by the Independent Objector on the grounds of Limited Public Interest or
Community. The Independent Objector may file a Limited Public Interest objection toan application even if a Community objection has been filed, and vice versa. The
Independent Objector may file an objection notwithstanding the fact that a String
Confusion objection or a Legal Rights objection has also been filed in respect of thatapplication. Absent extraordinary circumstances, the Independent Objector is not
permitted to file an objection to an application where an objection has already been
filed on the same ground. There is no issue here in any of these respects because thisObjection was brought on the ground of Limited Public Interest and no other objection
has been filed on the same ground.

81.

Section 3.2.5 of the Guidebook also imposes a public comment requirement. The
Guidebook states that “in light of the public interest goal” associated with his role, “theIndependent Objector shall not object to an application unless at least one comment in
opposition to the application is made in the public sphere.” As the Independent
Objector indicates, several public comments were filed on the ICANN website inrespect of the Application. The Panel is satisfied that the public comment requirement
imposed by the Guidebook has been met in this case.

82.

One last point bears mention in the context of our analysis of standing. According tosection 3.2.5 of the Guidebook, “the Independent Objector may file objections against24

‘highly objectionable’ gTLD applications.” Conceivably, this could be viewed asraising a question of standing. The parties have not formally addressed the issue as amatter of standing, however, and the Panel will therefore treat it as a question of
merits.

7.3. The Admissibility of Certain Documents

83.

A preliminary objection raised by the Independent Objector as to the admissibility ofcertain documents submitted as evidence by the Applicant must now be considered
before the Panel turns to the merits.

84.

The Independent Objector raised a preliminary question concerning the admissibilityof two expert reports filed by the Applicant as Annex 2 and Annex 3 to the Response.
These are presented by the Applicant as expert evidence on international law and arereferenced in the Response. The Independent Objector argues that the reports are
essentially a means for the Applicant to get around the page limits imposed by theProcedure. Each of the reports is approximately of the same length as the maximum
respectively allowed for the Objection and the Response pursuant to the Procedure.
The Independent Objector concludes that the annexes, “under the disguise of ‘expert
opinions’, are nothing more (or nothing less) than extensions and/or expansions of the
Applicant’s Response”. The Independent Objector requests that the annexes be struck
from the record as inadmissible.

85.

The Applicant objects to the request and disagrees with the Independent Objector’s
allegations, arguing that every significant element of its analysis was presented within
the prescribed length limitation and that the expert reports simply provided additional
background on the relevant principles applicable to a controversial an unsettled aspectof international law.

25

86.

The Panel reserved this preliminary issue to its Determination and informed the parties
accordingly. Neither party objected to this course of action. In the meantime, the Panelmembers refrained from reviewing the expert reports.

87.

The Panel finds it unnecessary to decide this preliminary issue because it has been able
to dispose of the Objection on the merits without having to consult the expert reports at
issue.

7.4. The Standards of Adjudication and Legal Principles

88.

Section 3.5 of the Guidebook stipulates that each panel will use appropriate generalprinciples (standards) to evaluate the merits of each objection, while Article 20(a) of
the Procedure obliges each panel to apply the standards that have been defined by
ICANN. In addition, pursuant to Article 20(b) of the Procedure, the Panel “may refer
to and base its findings upon the statements and documents submitted and any rules or
principles that it determines to be applicable.”89.

In the case of a Limited Public Interest objection, section 3.5.3 of the Guidebook
specifies that an expert panel will consider “whether the applied-for gTLD string iscontrary to general principles of international law for morality and public order”.

90.

The first point to consider is the appropriate object of the Panel’s analysis. The
Applicant argues that the true purpose of the Limited Public Interest objection is toprevent the delegation of strings that are, in and of themselves, objectionable. The
Independent Objector, however, maintains that the question is not, or at least not only,
whether the string is objectionable, but rather whether the applied-for gTLD string and
its intended operation may be objectionable from the perspective of general principles
of international law for morality and public order.

The Independent Objector’s

position is not that the word or abbreviation “med” would be objectionable per se but26that the Application does not guarantee its use in full respect of general principles ofinternational law for morality and public order.

91.

One example should be enough to show that the Independent Objector’s position on
this point is correct. Suppose an enterprise specializing in the production of films
intended for adults was applying for the .KIDS string and proposing to operate it as adomain reserved for pornographic materials. It should be obvious that the Limited
Public Interest objection was intended to cover such a case. Yet, there would benothing highly objectionable in the string .KIDS considered independently from thecontext of the intended purpose of the gTLD.

92.

The Panel notes that the correct approach is quite clearly stated in the Guidebook,which provides that “the Panel will conduct its analysis on the basis of the applied-for
gTLD string itself” but “may, if needed, use as additional context the intended purposeof the gTLD as stated in the Application.” The Panel will thus proceed on that basis.

93.

Section 3.5.3 of the Guidebook provides useful guidance concerning “the generalprinciples of international law for morality and public order” which it contemplates:

Examples of instruments containing such general principles include, but are notlimited to:

The Universal Declaration of Human Rights (UDHR);The International Covenant on Civil and Political Rights (ICCPR);The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW);The International Convention on the Elimination of All Forms of Racial
Discrimination;

Declaration on the Elimination of Violence against Women;



The International Covenant on Economic, Social, and Cultural Rights;
27



The Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment;



The International Convention on the Protection of the Rights of all MigrantWorkers and Members of their Families;

94.



The Slavery Convention;



The Convention on the Prevention and Punishment of the Crime of Genocide; and

The Convention on the Rights of the Child.

The Guidebook notes that these instruments “are included to serve as examples, rather
than an exhaustive list,” and that they “vary in their ratification status.”

The

Guidebook also observes that “states may limit the scope of certain provisions throughreservations and declarations indicating how they will interpret and apply certain
provisions.”95.

One principle which finds express mention in section 3.5.3 of the Guidebook is
freedom of expression. The Guidebook however adds that “the exercise of this rightcarries with it special duties and responsibilities” and that “certain limited restrictions
may apply.”96.

The following part of section 3.5.3. elaborates on the grounds upon which an appliedfor gTLD string may be considered contrary to generally accepted legal norms relating
to morality and public order that are recognized under principles of international law.
Four such grounds are identified:

Incitement to or promotion of violent lawless action;

Incitement to or promotion of discrimination based upon race, color, gender,
ethnicity, religion or national origin, or other similar types of discrimination that
violate generally accepted legal norms recognized under principles of internationallaw;

Incitement to or promotion of child pornography or other sexual abuse of children;
28

or


A determination that an applied-for gTLD string would be contrary to specificprinciples of international law as reflected in relevant international instruments of
law.

97.

The present Objection is based upon the fourth ground, namely that the string would becontrary to specific principles of international law as reflected in relevant international
instruments of law.

98.

According to the Applicant, this ground should be considered in the context of theother three, pursuant to an ejusdem generis approach. The Applicant maintains that thefirst three grounds “set a high standard for general acceptance” and that “[o]nly
specific international norms with a similar degree of general acceptance should from abasis” for a Limited Public Interest objection. Relying on explanatory memoranda
published by ICANN during the development process of the new gTLD program, theApplicant adds that the first three categories are generally accepted as “legitimate
restrictions on expression”, but that other categories – for example, incitement to nonviolent illegal activities – are not.

99.

The Independent Objector disagrees with this analysis, discounting the memoranda andarguing that the fourth ground is different in kind from the other three, thus excluding
the ejusdem generis approach. He also argues that the “or” that separates the third andfourth grounds (as opposed to an “and”) takes away any doubt as to the scope for
applying the ejusdem generis approach.

100.

In the Panel’s view there can be no doubt that the four grounds are similar insofar as
they all correspond to a notion of contrariety to generally accepted norms of morality
and public order. If a situation of contrariety to international law does not relate to
morality and public order, then an objection cannot stand. At the same time, the Panelnotes that the fourth ground is indeed different from the first three in an important way.
29

The first three grounds each provide a specific basis for a finding that the string is“contrary to generally accepted legal norms relating to morality and public order thatare recognized under principles of international law.” They refer to specific actions
deemed contrary to the relevant norms, i.e., “incitement to or promotion of […]violent, lawless action”, “discrimination” and “sexual abuse of children”. The fourth
ground, by contrast, leaves open the scope of further possible substantive violations,but imposes an important requirement: the string must be contrary to specificprinciples of international law that rise to the level of generally accepted legal norms
relating to morality and public order.

101.

Under the overall requirement of contrariety “to generally accepted legal norms
relating to morality and public order that are recognized under principles ofinternational law”, the fourth ground leaves it to the discretion of the Expert Panel todetermine if the applied-for gTLD is contrary to a specific principle or principles ofinternational law relating to morality and public order.

In this limited sense theejusdem generis approach is appropriate. The three preceding grounds provide anindication to the Expert Panel of the kinds of principles of international law that are
sufficiently specific, and of the kinds of grounds considered sufficiently serious, torestrict the right to freedom of expression of the Applicant.

102.

The Panel notes that the first three grounds mentioned in section 3.5.3 could
potentially afford a basis for necessary and proportionate restrictions on free
expression under international law, in terms, for example, of Article 19(3)(b) and
Article 20(2) of the ICCPR. There are other grounds on which free expression may belimited, i.e.: respect for the rights or reputations of others, national security, publicorder, public health or morals. In the Panel’s view, the reference to “morality” and“public order” in the first paragraph of section 3.5.3 of the Guidebook does not
exclude limitations of free expression on such other grounds as are mentioned in the
ICCPR. While also accepting that – as underscored in section 3.5.3 of the Guidebook –state practice on the interpretation of these provisions (including the right to free30

expression) varies, in the Panel’s view there is a specific principle of international law,reflected in relevant international legal instruments, which permits limitation of free
expression on public health grounds.

7.5. The Merits of the Objection

103.

The Independent Objector alleges that the applied-for gTLD string, in light of the
Application, is contrary to a specific principle of international law, namely the right tohealth, as protected under international law. He argues that his appreciation of the.MED gTLD is directly linked to his appreciation of the concept of health, since theabbreviation “med” for medical and medicine is inextricably connected to health. He
lists several instruments of international law that confirm the existence of a right tohealth and concludes that the promotion and protection of health is inherent in the due
respect of generally accepted legal norms of public order that are recognized underfundamental principles of international law. He argues that the right to health extends
to access to reliable and trustworthy health-related education and information.

104.

The Applicant does not contest that the right to health “as reflected in relevantinternational instruments of law” is “generally accepted,” and that it relates to“morality and public order”. However, the Applicant submits that the scope andcontent of the right to health, and whom it obligates, are far from clear, and also
contends that it clearly does not prevent anyone from simply sharing healthinformation, in a gTLD or otherwise. The Applicant submits that non-state actors haveno direct international obligations related to health. Moreover, the Applicant argues
that, even assuming the right to health could be impaired by a health-related gTLD,
such a concern does not rise to the level of a threat to public order, and, moreover, isinapplicable to the restricted .MED gTLD proposed by Medistry.

31

105.

The Independent Objector has framed his Objection in terms of the right to healthrather than in terms of public health as a valid ground for limiting freedom of
expression.

There are analytical differences between the right to health as anindividual human right (enshrined, for example, in Article 12 of the International
Covenant on Economic, Social, and Cultural Rights (“ICESCR”)) and public health asa ground for limiting freedom of expression (in terms, for example, of Article 19 of the
ICCPR).

It is worth exploring these differences to cast light on the state ofinternational law in this area.

106.

The right to health is defined by the United Nations Committee on Economic, Social
and Cultural Rights as the right to the highest attainable standard of physical andmental health.6 In the interpretation of the Committee, the right to health also includes
the right to receive and have access to information about health.7 As the terms of
Article 12 of the ICESCR indicate, the principal obligor is the state. The Independent
Objector has however stressed that “not only public authorities, but also the private
sector have responsibilities vis-à-vis the protection of human rights.” The Panel does
not consider it necessary to come to a definitive view on the question of the extent towhich, if any, non-state actors may be bound by international human rights obligations,because, as explained below, the right to health question can be resolved by reference
to the content of the right.

107.

Where public health appears as a ground for restricting freedom of expression, as forexample in the case of Article 19 of the ICCPR, it has permissive rather thanobligatory effects. States are permitted to limit the exercise of free expression on
public health grounds. But they are not obliged to do so – at least not in terms of
Article 19 of the ICCPR.

6

United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right tothe highest attainable standard of health (art.12 of the Covenant on Economic, Social and Cultural Rights), 11
August 200, E/C. 12/2000/4, para.9.
7
Id, para. 11.

32

108.

It is conceivable that an obligation to restrict freedom of expression may arise as partof a state’s obligation vis-à-vis the right to health. But such a restriction would still
have to satisfy the conditions in the limitation clause in Article 19 (or other equivalent
provisions protecting free expression). A restriction of free expression cannot bejustified solely on the basis of its purported positive consequences on the right tohealth. To do so would result in endless expansions in the permissible limitations of
freedom of expression by reference to consequentialist arguments about the impact thata particular restriction could have on the enjoyment of other rights. Moreover, such
restrictions must be both necessary and proportionate.

109.

Furthermore, as the Independent Objector has himself noted, the information-related
element of the right to health is the right to have access to information that is reliable
and trustworthy. It does not follow from this right that a state has a duty to censor all
information on health that is not deemed reliable and trustworthy.

110.

The above analysis of the relationship between the right to health, freedom of
expression and public health as a ground for limiting free expression informs theapproach of the Panel. The Panel accepts that the right to health is a specific principle
of international law, but that right has to be considered in light of the right to freedomof expression and of the limited grounds upon which it is permissible to restrict thisright.

111.

Starting from those premises, the Independent Objector bears the burden of provingthat the applied-for gTLD string, in light of the Application, would be “contrary” to theright to health, that a restriction on freedom of expression would be permissible under
section 3.5.3 of the Guidebook, and hence that the Objection should be sustained(Article 20 of the Procedure). The Panel finds that the Independent Objector has failed
to discharge its burden of proof in this case.

33

112.

The Applicant rightly points out that the right to health, on its face, does not prevent
anyone from simply sharing health information, in a gTLD or otherwise.

The

Independent Objector affirms, but fails to establish, that the right to health prohibits thedissemination of health-related information on a commercial basis.

113.

The Independent Objector claims that the private sector has responsibilities vis-à-vis
the protection of human rights, but links these responsibilities to the idea of a possible
interference with the obligations imposed on public authorities by international law:“[p]roviding medical related information on a worldwide basis”, he writes, “mightinterfere with efforts of public authorities to fulfill their obligations” underinternational law. (emphasis added)

114.

The Independent Objector has not demonstrated to the Panel’s satisfaction that thecapacity or efforts of public authorities to fulfill their international obligations byprotecting and promoting the right to health would be affected by the delegation of theapplied-for string and, furthermore, how such alleged interference by the applied-for
gTLD string (in the context of the intended purpose thereof) would be contrary to a
specific principle of international law relating to public morality, public health or
public order.

115.

Even if the Panel were to assume, arguendo, that the capacity and efforts of publicauthorities to protect and to promote the right to health might be adversely affected, itwould still be necessary to show that morality and public order – or any of the othergrounds on which limitations of free expression are justifiable under international law– are engaged in a way that justifies a limitation on freedom of expression. Free
expression cannot be limited merely on the grounds of policy convenience. As noted
earlier, the threshold for a permissible restriction is higher. In the case of publichealth, the restriction must also be shown to be necessary to the protection of publichealth. The Independent Objector does not meet this necessity test.

34

116.

Even if one were to consider the Independent Objector’s case exclusively on right tohealth grounds, and not take into account the principles governing the limitation of
freedom of expression, the Objection would have to fail. In fact, in the view of theCommittee on Economic, Social and Cultural Rights, information accessibility inrelation to the right to health “includes the right to seek, receive and impart
information and ideas concerning health issues.” It does not include the right to beprotected from the mere risk of misleading or misleading or unreliable information.
Had there been proof of a significant risk of dissemination of misleading or unreliable
information, or a deliberate intention to this effect, the Panel’s assessment may wellhave differed. But the Independent Objector has offered no such evidence. For its
part, the Applicant has provided various assurances, most notably in relation to theadministration of the gTLD.

117.

The Panel thus finds that the Independent Objector has failed to bridge the large gap
between, on the one hand, his bare allegation that the capacity or efforts of states tofulfill their obligations under the right to health might be affected by the applied-for
gTLD, and, on the other hand, a demonstration of how such a scenario would becontrary to a specific principle of international law relating to public morality, publichealth or public order. The Objection must therefore fail.

7.6. The Alternative Remedy

118.

In the event the Objection is not successful, the Independent Objector seeks analternative remedy. He asks this Panel “to hold the present Objection is valid as longas the Applicant has not provided solutions for the serious objections raised”. The
Independent Objector does not provide details of this alternative remedy or of its basis
in the Guidebook or the Procedure. The Procedure indicates quite clearly that theavailable remedies are “limited to the success or dismissal of an Objection and to therefund by the DRSP to the prevailing party, as determined by the Panel in its Expert
35Determination, of its advance payment(s) of costs pursuant to Article 14(e) of thisProcedure and any relevant provisions of the applicable DRSP Rules.” The Panelfinds that there is no basis in the Procedure for the alternative remedy sought by the
Independent Objector.

119.

This does not take away from the serious concerns raised by the Independent Objector.
However, the very difficult policy questions surrounding the delegation and operationof health-related strings are not matters for this Panel to decide. It was not in particular
this Panel’s task to decide on matters of public interest broadly defined, although theexpression “Limited Public Interest” might suggest otherwise. This Panel was asked
only to determine whether the Objection could be sustained on the basis that theapplied-for gTLD string (in the context of its intended purpose) was contrary to
general principles of international law for morality or public order. It was not, in otherwords, the task of this Panel to determine whether granting the Application advances
the public interest in a more general sense. This Panel’s task was to impartially apply
the tests as they are found in the Guidebook and as they may be understood from a
consideration of the broader context in which they came to be formulated.

8. DETERMINATION120.

For the reasons provided above and in accordance with Article 21(d) of the Procedure,
the Panel

DISMISSES the Limited Public Interest Objection to Medistry, LLC’s Application
for the string .MED brought by the Independent Objector;

DECLARES that the prevailing party for the purpose of cost advance refund under
Article 14(e) of the Procedure is Medistry, LLC; and36



DISMISSES all other requests in these proceedings.

Mr. John Gaffney

Professor Guglielmo Verdirame

Co-Expert of the Expert Panel

Co-Expert of the Expert Panel

Professor Fabien Gélinas
Chair of the Expert Panel

Date: 19 December 201337