ICANN Ombudsman Blog Creating Dialogue Affirming Fairness

December 12, 2012

Trademark Clearinghouse

Filed under: Uncategorized — Chris LaHatte @ 3:06 pm

I have received a complaint about the process used in the recent Trademark Clearinghouse meetings where decisions were made on the way forward. The complaint in summary says that the decisions were made without full consultation from some contituencies. I have of course not formed any view on this, and need input from people who participated and were pleased with the process, or from others who feel they were excluded. Such submissions can be made to me at ombudsman@icann.org, or on this blog. as comments.

December 9, 2012

DotAfrica Complaint

Filed under: Uncategorized — Chris LaHatte @ 12:00 pm

Office of the Ombudsman

Case 12-00241

In a matter of a Complaint by Sophia Bekele for DotAfrica

Report dated 10 December 2012

Introduction

This complaint began with a letter in relation to allegations of conflict of interest on the part of 2 members of the board of ICANN. The complaint was made by Sophia Bekele on behalf of DotAfrica, which is one of 2 applications for the new generic top-level domain .africa. By way of background, the new gTLD program is probably the most significant change to the domain name system for many years. There are over 2000 different applications for approximately 1100 names, and this application (.africa) like many others, has several applicants. There is a considerable amount at stake both financially and for other reasons and therefore the applicants are watching the process very closely.

Facts

The essence of the complaint is a complaint about a conflict of interest with members of the ICANN board in considering issues about new gTLDs applications. This was first raised by DotConnectAfrica which sent 2 separate letters dated July 9, 2012 to report a matter of Conflict of Interest on .Africa new gTLD applications regarding Mr. Mike Silber, a member of the ICANN Board from South Africa, and Mr. Chris Disspain, a member of the ICANN Board from Australia. Subsequently a complaint was made to the office of the ombudsman in relation to the issue on October 2012.

There has been considerable amount of discussion on blogs, Twitter and other sites and in comments on the ICANN website in relation to the new  .africa gTLDs applications. Regrettably much of the discussion has been intemperate. I discuss this further in this report.

To examine the complaint it is necessary to see what the Board has discussed about the gTLD programme.

ICANN has set up a process for managing the new gTLD applications, appointed staff and for the purpose of governance the ICANN board established a specific committee for the purpose of considering issues with regard to the new gTLDs program.

The committee was established on the 10th April 2012, when the ICANN Board resolved to set up a New gTLD Program Committee with the voting members of the Committee to be Rod Beckstrom, Cherine Chalaby, Chris Disspain, Bill Graham, Erika Mann, Gonzalo Navarro, Ray Plzak, R. Ramaraj, George Sadowsky, Mike Silber, and Kuo-Wei Wu; with liaisons to the Committee Thomas Roessler; and the Chair of the Committee Cherine Chalaby. At the same time resolutions were passed about conflict of interests policies.

Resolved (2012.04.10.03), all members of the New gTLD Program Committee reinforce their commitment to the 8 December 2011 Resolution of the Board (Resolution 2011.12.08.19) regarding Board member conflicts, and specifying in part: “Any and all Board members who approve any new gTLD application shall not take a contracted or employment position with any company sponsoring or in any way involved with that new gTLD for 12 months after the Board made the decision on the application.”

Resolved (2012.04.10.04), the Board directs the CEO to prepare a document setting forth a process for the creation of Board Committees to address future situations where there may be multiple Board members with perceived, potential or actual conflicts of interest on an issue.”

The starting point for conflict of interest policy is the policy adopted in December 2011. The purpose of this policy is to identify conflicts of interest but also to ensure that any such conflicts are identified. The Board Governance Committee of ICANN is responsible for administering policy and requires board members to complete statements of position on an annual basis. Http://www.icann.org/en/groups/board/governance/coi/coi-policy-08dec11-en.htm

Under this policy regular statements of interest are lodged with the secretary for ICANN. The latest relevant to this is 12 March 2012-from the ICANN Website:-

“Summary of ICANN Board Statements of Interests

Mike Silber – Director and treasurer of ccTLD .za domain name authority and member of the Management Committee and treasurer of Internet Service provider Association (ISPA) South Africa.

Chris Disspain – Director and CEO of .au Domain Administration Limited, the .au ccTLD manager; .au has sponsorship agreement with ICANN under which .au pays ICANN a yearly amount based on the amount of names under management. Former Officer of ICANN, Paul Levins, has been named as a Director of .au Domain Administration Limited.”

I have asked the complainant to specifically identify the actual conflicts and asked “I would like to have explained the precise details of the conflict of interest which you say exists with these two board members.” I have not received any more detail than the letters, which identify connections, said to be the conflicts of interest.

Investigation

To conduct this investigation it has been necessary to look at the board meeting minutes to analyse whether there have been any decisions made at the new gTLDs subcommittee which actually affect the complainant. It is of course quite possible that there would be issues which affect these 2 applications, but virtually all of the minutes of the committee are available online and available to be read. In addition, I have called for material from Sophia Bekele, discussed the issue with her, and also had discussions with both Chris Disspain and Mike Silber. The secretary to the ICANN board and counsel to ICANN, John Jeffrey, has the responsibility for identifying matters such as conflict of interest and I therefore discussed the matter with him. There is also a considerable amount of material discussing the .africa applications on a number of different blogs and other sites which discuss the applications and the merits. Clearly both parties seeking the .africa gTLD are passionate about their respective applications, but some of the writers appear to have failed to restrain themselves in criticism. For the purpose of this investigation it has not been necessary for me to consider the level of acrimony and accusations, except to say that it is unfortunate.

Specifically, the purpose of the investigation is to analyse whether in fact there has been any actual conflict of interest with the 2 board members in considering issues in relation to the .Africa applications. For this purpose I have looked at the minutes of the committee to determine whether there has been any discussion recorded on the .africa applications. That is of course not the only venue where such matters are discussed, and the minutes of the full board meeting would also be relevant. I have therefore also checked those minutes. They also do not have any mention of the issue. That is perhaps not surprising, considering that individual details of the new gTLDs applications are unlikely to be discussed by the board until very much later in the process. It is clear that the discussions at the board level are at a higher level of policy and process to be put into place to handle program and the applications.

The letters of complaint identify connections between the 2 board members and the competing application. It is however necessary to identify the appropriate standard required for a conflict of interest to exist, and for the conflict to be an issue requiring those board members to recuse themselves on any issues. As part of my investigation I have therefore taken advice on the appropriate test for conflict, in the context of a non-profit company incorporated in California.

Jurisdiction

This is a matter where I clearly have jurisdiction. If there is a conflict of interest then this would result in unfairness, which under Bylaw V, is a matter that I can investigate.

Reasoning

The complainant’s issue is of course one of considerable importance if proved. It must be said however, that the standard for conflict of interest for members of a board of directors of a company, is somewhat different from the standard required for arbitrators or judges. There is of course an important distinction between actual bias and apparent bias. But underlying this is the need for some action by the members of the board which would offend against principles of conflict of interest. However it is clearly apparent when the records are examined, that the 2 board members have not participated in any decision-making about .africa, and indeed there has been little discussion other than at a higher level about the program in general. It is in my view premature to consider whether there can even be apparent bias, because it is too remote to link the suggested connections with the very generic discussions which have taken place, and in addition, where the actual decisions about the applications are still some distance from being made.

Result

As a result of this investigation, I consider that no disqualifying conflict of interest, or indeed any conflict of interest at all, is present in the actions of both Chris Disspain and Mike Silber. It is likely this complaint has led to increased awareness of the possibilities of conflict of interest, which the Board will carefully consider in terms of the existing policy about conflict, when the issue arises. I consider this should continue to be a matter for consideration in gTLD decision making by the Board.

An aspect of this application has been the unfortunate tone of much of the debate on various websites blogs and other places. During the course of this investigation I discussed this with Sophia Bekele (at the Toronto meeting) and suggested that perhaps a less aggressive approach would be appropriate. She readily agreed to this. The discussion and debate continues to be fairly vigorous, but I would suggest to the competing parties for .africa that they should pay attention to the ICANN rules about respectful communication. No doubt feelings are deep and passions strong. However I would urge the parties to consider the ground rules for such debate.

 

Chris LaHatte

Ombudsman

 

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