[council] Resolution from Board meeting yesterday to consider the Indepdent Review Panel delcaration on .Africa

[Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

From:  https://www.icann.org/resources/board-material/resolutions-2015-07-16-en

DotConnectAfrica Trust (DCA) v. ICANN IRP Final Declaration

Whereas, on 9 July 2015, an independent review panel ("Panel") issued a final 
Declaration ("Declaration") in the independent review proceedings (IRP) 
initiated by DotConnectAfrica Trust (DCA), in which DCA sought relief relating 
to Board action or inaction on its application for .AFRICA.

Whereas, in the Declaration, the Panel set forth the following:

        148. Based on the foregoing, after having carefully reviewed the 
Parties' written submissions, listened to the testimony of the three witness 
[sic], listened to the oral submissions of the Parties in various telephone 
conference calls and at the in-person hearing of this IRP in Washington D.C. on 
22 and 23 May 2015, and finally after much deliberation, pursuant to Article 
IV, Section 3, paragraph 11 (c) of ICANN's Bylaws, the Panel declares that both 
the actions and inactions of the Board with respect to the application of DCA 
Trust relating to the .AFRICA gTLD were inconsistent with the Articles of 
Incorporation and Bylaws of ICANN.

        149. Furthermore, pursuant to Article IV, Section 3, paragraph 11 (d) 
of ICANN's Bylaws, the Panel recommends that ICANN continue to refrain from 
delegating the .AFRICA gTLD and permit DCA Trust's application to proceed 
through the remainder of the new gTLD application process.

        150. The Panel declares DCA trust to be the prevailing party in this 
IRP and further declares that ICANN is to bear, pursuant to Article IV, Section 
3, paragraph 18 of the Bylaws, Article 11 of the Supplementary Procedures and 
Article 31 of the ICDR Rules, the totality of the costs of this IRP and the 
totality of the costs of the IRP Provider as follows:

                a) the fees and expenses of the panelists;

                b) the fees and expenses of the administrator, the ICDR;

                c) the fees and expenses of the emergency panelist incurred in 
connection with the application for interim emergency relief sought pursuant to 
the Supplementary Procedures and the ICDR Rules; and

                d) the fees and expenses of the reporter associated with the 
hearing on 22 and 23 May 2015 in Washington D.C.

                e) As a result of the above, the administrative fees of the 
ICDR totalling US$4,600 and Panelists' compensation and expenses totalling 
US$403,467.08 shall be born entirely by ICANN, therefore, ICANN shall reimburse 
DCA Trust the sum of US$198,046.04.

        151. As per the last sentence of Article IV, Section 3, paragraph 18 of 
the Bylaws, DCA Trust and ICANN shall each bear their own expenses. The parties 
shall also each bear their own legal representation fees.

Whereas, the independent review process is an integral ICANN accountability 
mechanism that helps support ICANN's multistakeholder model, and the Board 
thanks the Panel for its efforts in this IRP, and would like to specifically 
honor the memory of former panelist Hon. Richard C. Neal, who passed away 
during the proceedings.

Whereas, in addition to the Declaration, the Board must also take into account 
other relevant information, including but not limited to: (i) that ICANN 
received and accepted GAC consensus advice that DCA's application for .AFRICA 
should not proceed; and (ii) that ICANN has a signed Registry Agreement with ZA 
Central Registry ("ZACR") to operate the .AFRICA top-level domain.

Whereas, pursuant to Article IV, Section 3.21 of the Board considered the 
Declaration at the Board's next meeting, which the Board specifically scheduled 
in order to take action on this matter as quickly as possible. 

Resolved (2015.07.15.01), the Board has considered the entire Declaration, and 
has determined to take the following actions based on that consideration:

        1. ICANN shall continue to refrain from delegating the .AFRICA gTLD;

        2. ICANN shall permit DCA's application to proceed through the 
remainder of the new gTLD application process as set out below; and 

        3. ICANN shall reimburse DCA for the costs of the IRP as set forth in 
paragraph 150 of the Declaration.

Resolved (2015.07.16.02), since the Board is not making a final determination 
at this time as to whether DCA's application for .AFRICA should proceed to 
contracting or delegation, the Board does not consider that resuming evaluation 
of DCA's application is action that is inconsistent with GAC advice.

Resolved (2015.07.16.03), the Board directs the President and CEO, or his 
designee(s), to take all steps necessary to resume the evaluation of DCA's 
application for .AFRICA and to ensure that such evaluation proceeds in 
accordance with the established process(es) as quickly as possible (see 
Applicant Guidebook at http://newgtlds.icann.org/en/applicants/agb for 
established processes).

Resolved (2015.07.16.04), with respect to the GAC's consensus advice in the 
Beijing Communiqué that DCA's application for .AFRICA should not proceed, which 
was confirmed in the London Communiqué, the Board will ask the GAC if it wishes 
to refine that advice and/or provide the Board with further information 
regarding that advice and/or otherwise address the concerns raised in the 
Declaration.

Resolved (2015.07.16.05), in the event that DCA's application for .AFRICA 
successfully passes the remainder of the evaluation process, at that time or 
before, the Board will consider any further advice or information received from 
the GAC, and proceed as necessary, balancing all of the relevant material 
information and circumstances. Should the Board undertake any action that may 
be inconsistent with the GAC's advice, the Board will follow the established 
process set out in the Bylaws (see ICANN Bylaws, Article XI, Section 2.1).