12/28/2021 | Press release | Distributed by Public on 12/28/2021 13:17
The .web Independent Review Process (IRP) Panel issued a Final Decision six months ago, in May 2021. Immediately thereafter, the claimant, Afilias Domains No. 3 Limited (now a shell entity known as AltaNovo Domains Limited), filed an application seeking reconsideration of the Final Decision under Rule 33 of the arbitration rules. Rule 33 allows for the clarification of an ambiguous ruling and allows the Panel the opportunity to supplement its decision if it inadvertently failed to consider a claim or defense, but specifically does not permit wholesale reconsideration of a final decision. The problem for Afilias' application, as we said at the time, was that it sought exactly that.
The Panel ruled on Afilias' application on Dec. 21, 2021. In this latest ruling, the Panel not only rejected Afilias' application in its entirety, but went further and sanctioned Afilias for having filed it in the first place. Quoting from the ruling:
In the opinion of the Panel, under the guise of seeking an additional decision, the Application is seeking reconsideration of core elements of the Final Decision. Likewise, under the guise of seeking interpretation, the Application is requesting additional declarations and advisory opinions on a number of questions, some of which had not been discussed in the proceedings leading to the Final Decision.
In such circumstances, the Panel cannot escape the conclusion that the Application is "frivolous" in the sense of it "having no sound basis (as in fact or law)." This finding suffices to entitle [ICANN] to the cost shifting decision it is seeking…the Panel hereby unanimously…Grants [ICANN's] request that the Panel shift liability for the legal fees incurred by [ICANN] in connection with the Application, fixes at US $236,884.39 the amount of the legal fees to be reimbursed to [ICANN] by [Afilias]…and orders [Afilias] to pay this amount to [ICANN] within thirty (30) days….
In light of the Panel's finding that Afililas' Rule 33 application was so improper and frivolous as to be sanctionable, a serious question arises about the motives in filing it. Reading the history of the .web proceedings, one possible motivation is becoming more clear. The community will recall that, five years ago, Donuts (through its wholly-owned subsidiary Ruby Glen) failed in its bid to enjoin the .web auction when a federal court rejected false allegations that Nu Dot Co (NDC) had failed to disclose an ownership change. After the auction was conducted, Afilias then picked up the litigation baton from Donuts. Afilias' IRP complaint demanded that the arbitration Panel nullify the auction results, and award .web to itself, thereby bypassing ICANN completely. In the May 2021 Final Decision the IRP Panel gave an unsurprising but firm "no" to Afilias' request to supplant ICANN's role, and instead directed ICANN's Board to review the complaints about the conduct of the .web contention set members and then make a determination on delegation.
A result of this five-year battle has been to prevent ICANN from passing judgment on the .web situation. These proceedings have unsuccessfully sought to have courts and arbitrators stand in the shoes of ICANN, rather than letting ICANN discharge its mandated duty to determine what, if anything, should be done in response to the allegations regarding the pre-auction conduct of the contention set. This conduct includes Afilias' own wrongdoing in violating the pre-auction communications blackout imposed in the Auction Rules. That misconduct is set forth in a July 23, 2021 letter by NDC to ICANN, since published by ICANN, containing written proof of Afilias' violation of the auction rules. In its Dec. 21 ruling, the Panel made it unmistakably clear that it is ICANN - not a judge or a panel of arbitrators - who must first review all allegations of misconduct by the contention set, including the powerful evidence indicating that it is Afilias' .web application, not NDC's, that should be disqualified.
If Afilias' motivation has been to avoid ICANN's scrutiny of its own pre-auction misconduct, especially after exiting the registry business when it appears that its only significant asset is the .web application itself, then what we should expect to see next is for Afilias/AltaNovo to manufacture another delaying attack on the Final Decision. Perhaps this is why its litigation counsel has already written ICANN threatening to continue litigation "in all available fora whether within or outside of the United States of America.…"
It is long past time to put an end to this five-year campaign, which has interfered with ICANN's duty to decide on the delegation of .web, harming the interests of the broader internet community. The new ruling obliges ICANN to take a decisive step in that direction.